HomeMy WebLinkAbout03-4988CONNIE MICKLEY,
Appellant
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: LICENSE SUSPENSION APPEAL
APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE
AND NOW comes the Appellant, Connie Mickley, by and through her attorney,
Karl E. Rominger, Esquire, at the Law Offices of Rominger & Bayley Law Offices,
respectfully avers the following:
1. Appellant resides at 982 Torway Road, Gardners, Pennsylvania, 17324.
2. Appellant received Notices dated August 5, 2003 and August 28, 2003, stating
that as a result of her serving her one year suspension of her drivers license, pursuant to
her conviction for DUI, her driving license is to be restored on an undetermined date, (her
license was suspended as of September 4, 2002) so long as she complies with the Restoration
Requirements Letter. A copy is attached hereto as Exhibit "A'.
3. In its pertinent parts, the letter states Defendant must make arrangements to
have the Guardian Interlock installed at least thirty (30) days before her restoration date,
and until such is done, she will be ineligible for restoration.
4. The letter also states that if he does not apply for or receive a Guardian Interlock
License, she will receive an additional one (1) years license suspension.
5. The Pennsylvania Department of Transportation is acting under Chapter 70 of
the Judicial Code including, Section 7003 and the related statutes, which were made law by
Act 63 of 2000.
6. Appellant asserts that the Pennsylvania Department of Transportation is
violating the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution and Article I, Section 26 of the Pennsylvania Constitution.
7. The actions of the Commonwealth, and the application of the statute also violates
the Due Process Clause of the United States Constitution.
8. Appellant's constitutional challenges have been previously decided by this Court.
In Commonwealth v. Mockaitis, 54 Pa. D.C. 4~h 115, (Court of Common Pleas, Cumberland
County, 2001) Defendant's identical challenges were found to be meritorious, and it is the
law of this County that enforcement of this act is unconstitutional.
9. PennDOT has no authority to impose an ignition interlock requirement in this
case, as the Sentencing Order of October 1, 2002, did not impose one.
10. This case is identical to the question this Court most recently answered in
Watterson v. DOT, Bureau of Driver Licensing, 816 A.2d 1225; 2003 Pa. Commw. LEXIS
51, February 7, 2003.
11. Since, according to current case ]aw, this matter is ripe for review, and it is filed
at a time when departmental action, being the thirty (30) day requirement prior to
restoration, has been taken, this Court has the power to act and review the Department's
actions.
12. The enforcement of Act 63 of 2000 being unconstitutional in Cumberland
County, Appellant requests that this Honorable Court direct the Department of
Transportation issue her a license forthwith, without any special requirements.
13. Appellant requests that this directive be enforced pending the outcome of this
Appeal.
WHEREFORE, Defendant respectfully requests this Honorable Court find that the
Department of Transportation has violated the Due Process Clause of the United States
Constitution. Article I, Section 26 of the Pennsylvania Constitution, and the Equal
Protection Clause of the Fourteenth Amendment of the United States Constitution, and
direct that the Department of Transportation issue a standard drivers license immediately,
as the one (1) year suspension was from September 4, 2002, and that the Department of
Transportation be enjoined from enforcing Act 63 of 2000 in Cumberland County.
Date:
Respectfully submitted,
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendant
CONNIE MICKLEY,
Appellant
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO:
: LICENSE SUSPENSION APPEAL
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Defendant, do hereby certify that I this
day served a copy of the Appeal from Suspension of Operator's Privilege upon the following
by depositing same in the United States Mail, first class postage prepaid, at Carlisle,
Pennsylvania, addressed as follows:
George Kabusk, Esquire
PA Department of Transportation,
Office of Chief Counsel, Third Floor,
Riverfront Office Center,
Harrisburg, PA 17104-2516
Karl E. Rominger, Esquire
Attorney for Defendant
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
HARRISBURG, PA 17123
08/05/05
CONNIE B MICKLEY DRIVER'S LICENSE NUMBER= 1570q091
982 TORWAY ROAD BIRTH DATE= 06/50/52
GARDNERS PA 17524
Dear MS. MICKLEY =
This is a RESTORATION REQUIREMENTS LETTER. It lists what you
must do to restore your driving privilege. PLEASE BE AWARE THAT
THIS LETTER DOES NOT AUTHORIZE YOU TO DRIVE. You will be notified
by the Department of Transportation (PENNDOT) that your driving
privilege has been restored, Only after that may you drive.
The date when you are eligible to have your driving privilege restored
has not been determined. To determine this ELIGIBILITY DATE, you
must resolve any issues listed in this letter as DRIVER'S LICENSE
RETURN, INDEFINITE SUSPENSION, INDEFINITE CANCEL, [NDEFINITE RECALL,
and/or PRISON RELEASE REQUIREMENT.
Please read the following information carefully and be sure to
complete all requirements to have your driving privilege restored,
Unless another address is indicated, return any documents and/or
fees to the MAILING ADDRESS listed at the end of this letter,
RESTORATION FEE
-You must pay a 925.00 restoration fee to PENNDOT. Write your
driver's license number (listed above) on the check or money order
to ensure proper credit. Your check or money order should be made
payable to PENNDOT.
PRISON RELEASE REQUIREMENT (ACT 151)
-The Court has sentenced you to serve a Prison term. Pursuant to
Sect/on 1541 of the Vehicle Coder you will not receive credit for
this suspension/revocation or any additional suspension/revocation
until you serve your prison term. The Court must certify to PENNDOT
that your prison term is compieted. PENNDOT recommends that you
CONTACT YOUR PROBATION OFFICER and/or the Court to ensure that PENNDOT
is properly notified.
PROOF OF INSURANCE
-Within 50 days of your ELIGIBILITY DATE, provide a copy of one of
the following to PENNDOT to show that all motor vehicles currently
LICENSE NO, = 15704091
registered ~n Pennsylvania in your name are insured: ~Insurance ID card
~Declaration page of your insurance policy
~Insurance Binder
~An application of insurance to the PA Auto Insurance Plan
[f you do not own a motor vehicle currently registered in Pennsylvania,
send a signed statement of th~s fact to PENNDOT which reads "! do
not own any motor vehicles currently registered in Pennsylvanla".
P/ease include your name~ address, driver's license number and date
of birth on the statement,
COURT ORDERED TREATMENT PROGRAM (ACT 122)
-You must successfully complete the treatment program for alcohol
or drug addict/on ordered by the Court of CUMBERLAND CTY, Court
Number 335, Court Term 2002. The Court must certify to
PENNDOT that you completed the treatment program. PENNDOT recommends
that you CONTACT YOUR PROBATION OFFICER and/or the Court to ensure
that PENNDDT ks properly notified.
TERM SUSPENSION/REVOCATION
-You have a ! YEAR:S) suspension/revocation that began (or
will beg/n) on 09/04/02, Credit for servlng th~s suspenslon/revoca-
tion began (or will begin) on 09/04/02 and will end on 09/04/03.
The suspenalon/revocatlon resulted from a violation on 11/0~/01
of Section 3731, DRIVING UNDER INFLUENCE
IGNZTION INTERLOCK
You are required to have an approved Ignition Interlock SYstem
/nstalled in all of your vehicle(s). Approximately 30 days before
your ELIGIBILITY DATE~ you should contact one of the following
approved vendors listed below to make arrangements to have the
System installed.
-Interlock Installation Services - 1-800-q52-17~9
-Consumer Safety Technology, Inc. 1-877-777-5020
-Nationa! Interleck~ Inc, 1o866-3~2-~98~
-Pennsylvania Interlock 1-866-718-8606
-Draeger Interlock~ Inc. -2-800~332-6858
-American InterZock Services -1-877-273-28~1
You will need to provide the vendor the following court information
before the SYstem can be installed.
COUNTY COURT NUMBER COURT TERM
CUMBERLAND CTY 335 2002
Please retain a copy of this letter to assist you in this process.
If You choose not to install the Ignition Interlock System in your
LICENSE NO. : 15704091
vehicle[s), your driving privilege wil! remain suspended for an
additional year.
IGNITION INTERLOCK LICENSE
-In order to have your driving pr/vilege restored you must apply for
an Ign/tion Interlock license. An Ignit/on Interlock license entitles
you to drive only veh/cles eauipped w/th an Ignition Interlock System.
You may make applicat/on 50 days BEFORE your eligibility date.
An application is enclosed for your convenience,
This letter /dentifJed the requirements necessarv to restore your
driv/ng pr/v1Zege and we are Zooking forward to work/rig with you to do
this. Unless another address was ind/cated, return any documents and/or
fees to the NAILING ADDRESS 1/sted below. Phone numbers are provided
for your use. To ensure prompt customer service, please write your
driver's license number, listed at the beginning of this letter, on all
documents you send to PENNDOT. Thank you.
NAILING ADDRESS:
PENNDOT
Bureau of Driver Licensing
P.O. Box 6869~
Harrisburg~ PA 17106-8695
ZNFORHATZDN (7:00 AH to 9:00 PN)
IN STATE Z-800-952-~600
OUT-OF-STATE 717-391-6190
TDD [N STATE 1-800-228-0676
TDD OUT-OF-STATE 717-391-6191
3
LICENSE NO. ~ 1570q091
IGNITION INTERLOCK LICENSE APPLICATION
To apply for an Ignition Interlock license, please sign below
and submit this page with a check or money order in the amount of
810.00 to the mailing address listed at the bottom of this letter.
Your check or money order should be mode payable to PENNDOT.
DRIVERfS LICENSE NUMBER - 15704091
CONNIE B NICKLEY
982 TORWAY ROAD
GARDNERS PA 17324
SIGNATURE TELEPHQNE NO:
If your address has changed~ please Print the correct address here:
If you choose not to install an Ignition Interlock System,
not have to apply for an Ignition Interlock license.
MAILING ADDRESS:
PENNDOT
P.O. Box 68693
Harrisburg, PA 17106-8692
you do
CONMONNEALTH OF PENNSYLVANIA
DEPARTflENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
HARRISBURG, PA 17123
08/28/03
CONNIE B HICKLEY
982 TORWAY ROAD
GARDNERS PA 17324
DRIVER'S LICENSE NUNSER=
BIRTH DATE:
15704091
06/50/52
Dear HS. NICKLEY :
This is a RESTORATION REQUIRENENTS LETTER. It lists what you
must do to restore your dr/ving priv/legeo PLEASE BE ANARE THAT
THIS LETTER DOES NOT AUTHORIZE YOU TO DRIVE. You w/ll be notif/ed
by the Department of Transportation CPENNDOT) that your driving
Privilege has been restored, Only after that may you drive.
The date when you are elig/ble to have your dr/v/ng pr/v/lege restored
has not been determ/ned. To determ/ne this ELIGIBILITY DATE, You
must resolve any /ssues 1/sted /n th/s letter as DRIVER'S LICENSE
RETURN, INDEFINITE SUSPENSION, INDEFINITE CANCEL, INDEFINITE RECALL,
and/or PRISON RELEASE REQUIREHENT.
Please read the fo/lowing /nformat/on carefully and be sure to
complete all requ/rements to have your dr/v/ng pr/vilege restored.
Unless another address /s /nd/cared, return any documents and/or
fees to the HAILING ADDRESS l/sted at the end of this letter.
RESTORATION FEE
-You must pay a 425.00 restarat/on fee to PENNDOT. Write your
dr/vet's I/cense number (I/sted above) on the check or money order
to ensure proper cred/t. Your check or money order should be made
payable to PENNDOT.
PRISON RELEASE REQUIREHENT (ACT 151)
-The Court has sentenced YOU to serve a pr/son term. Pursuant to
Sect/on 1541 of the Veh/cle Code, you w/ll not receive cred/t for
th/s suspens/on/revocat/on or any add/t/anal suspension/revocation
unt/! you serve your pr/son term. The Court must certify to PENNDOT
that your pr/son term is completed. PENNDOT recommends that you
CONTACT YOUR PROBATION OFFICER and/or the Court to ensure that PENNDOT
/s Properly not/f/ed.
PROOF OF INSURANCE
-W/th/n 30 days of your ELIGIBILITY DATE, prov/de a copy of one of
the follow/rig to PENNDOT to show that all motor veh/cles currently
LICENSE NO. : 15704091
registered in Pennsylvania in your name are insured= ~Insurance ID card
~Declaration page of your insurance policy
~Insurance Binder
NAn application of insurance to the PA Auto Insurance Plan
If you do not own a motor vehicle currently registered in Pennsylvania,
send a signed statement of this fact to PENNDOT which reads "! do
not own any motor vehicles currently registered in Pennsylvania"o
Please include your name~ address, driver's license number and date
of birth on the statement.
COURT ORDERED TREATMENT PROGRAM (ACT 122)
-You must successfully complete the treatment program for alcohol
or drug addiction ordered by the Court of CUMBERLAND CTY, Court
Number 355, Court Term 2002. The Court must certify to
PENNDOT that you completed the treatment program. PENNDOT recommends
that you CONTACT YOUR PROBATION OFFICER and/or the Court to ensure
that PENNDOT is properly not~fied.
TERN SUSPENSION/REVOCATION
-You have a I YEAR(S) suspension/revocation that began (or
will begin) on 09/0~/02. Credit for serving this suspension/revoca-
tion began (or will begin) on 09/04/02 and will end on 09/04/03.
The suspension/revocation resulted from a vlolation on [1/04/0!
of Section 3731, DRIVING UNDER INFLUENCE
IGNITION INTERLOCK
You are required to have an approved Ignition Interlock System
installed in all of your vehicle(s). Approximately 30 days before
your ELIGIBILITY DATE~ you should contact one of the following
approved vendors listed below to make arrangements to have the
System installed.
-Interlock Installation Services - 1-800-452-1739
-Consumer Safety Technology, Inc. 1-877-777-5020
-National Interlock~ Inc. 1-866-3~2-4984
-Pennsylvania Interlock 1-866-718-8606
-Draeger Interlock, Inc. -1-800-332-&858
-American Interlock Services -1-877-273-284!
You will need to provide the vendor the following court information
before the System can be installed.
COUNTY COURT NUMBER COURT TERM
CUMBERLAND CTY 335 2002
Please retain a copy of this letter to assist you in this process.
If you choose not to install the Ignition Interlock System in your
LICENSE NO. : 1570q091
IGNITION INTERLOCK LICENSE APPLICATION
To apply for an Ignition Interlock license, please sign below
and submit this page with a check or money order in the amount of
}10.00 to the mailing address listed at the bottom of this letter.
Your check or money order should be made payable to PENNDOT.
DRIVER'S LICENSE NUMBER
15704091
CONNIE B MICKLEY
982 TORWAY ROAD
GARDNERS PA 17324
SIGNATURE TELEPHONE NO:
If your address has changed, please print the correct address here:
If You choose not to install an Ignition Interlock System,
not have to apPlY for an Ignition Interlock license.
NAILING ADDRESS:
PENNDOT
P,O. Box 68693
Harrisburg, PA 17106-8693
you do
CONNIE MICKLEY,
Appellant
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 03
LICENSE SUSPENSION APPEAL
ORDER OF COURT
AND NOW, this ~ay of ~2003, upon consideration of this
APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE, it is Ordered that a
hearing on the matter shall be held on the ~_~ day of ~
at~___~o'clock ~ m. in Courtroom No,. ~ of the Cumberland County
Courthouse.
A Supersedeas is granted pursuant to the Vehicle Code until such time that this
Honorable Court resolves this appeal. Pending appeal the Department of Transportation
is to restore Appellant's driving privileges and upon Appeilant's request issue Appellant a
drivers license without the ignition interlock requirement.
By the Conrt:
Distribution:
PA Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office
--'~enter, Harrisburg, PA 17104-2516
Rominger & Bayley Law Offices, 155 South Hanover Street, Carlisle, PA 17013
~.Karl E. Rominger, Esquire
OtV'
CARLISLE FIRST Ct
App,
V.
BOROUGH OF CAR1
ZONING HEARING ]
App
TO THE CUMBERL
Please enter m
Please accept t
2003.
Dated:
lURCH OF GOD: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Iiant :
: CIVIL ACTION - LAW
._
..
ISLE :
IOARD, : LAND USE APPEAL
~llee : No. 2003-4998
PRAECIPE
~ND COUNTY PROTHONOTARY:
appearance on behalf of the Borough of Carlisle Zoning Hearing Board.
filing of the Record pursuant to the Writ of Certiorari dated September 19,
Respectfully submitted,
By~~ -~ ~/
Siepl%n D~. Tiley, ]Esquire
Attorney for Borough of Carlisle
Zoning Hearing Board
5 South Hanover Street
Carlisle, PA 17013
(717) 2430-5838
Supreme Court I.D.#32318
CARLISLE FIRST
Al
V.
BOROUGH OF CAi
ZONING HEARIN¢
A
I hereby certil
referenced matter upo
addressed as follows:
Date:
2HURCH OF GOD
}ellant
LISLE
BOARD,
~ellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LAND USE APPEAL
No. 2003-4998
CERTIFICATE OF SERVICE
that on this date I served a tree and correct copy of the Record in the above
the following by sending the same by first class mail, postage prepaid,
Mr. Russell Bova
709 Yorkshire Drive
Carlisle, PA 17013
James D. Hughes, Esquire
SALZMANN, HUGHES & FISHMAN, PC
Attorney for Appellant
First Church of God
95 Alexander Spring Road
Carlisle, PA 17013
StelShe~. ~ Tiley, ·Esquire.
Assistant Cumb. Co. Solicitor
5 S. Hanover Street
Carlisle, PA 17013
(717) 243-5838
Attorney I.D.#32318
IN THE COUR~
BOROUI
1. Writ of Cer
2. Carlisle Fin
3. Public Noti,
4. Proof of Pu
5. Irwin, McK
6. Transcript
7. Opinion an
OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
No. 03-4998 Civil Term
'.ARLISLE FIRST CHURCH OF GOD
VS.
]H OF CARLISLE ZONING HEARING BOARD
RECORD INDEX
iorari
t Church of God, Notice of Appeal, June 17, 2003
:e, Zoning Hearing Board Meeting, July 9, 2003
~lication for Public Notice, ZHB Meeting, July 9, 2003
aight & Hughes Letter to Zoning Hearing Board, July 8, 2003
f Proceedings, Zoning Hearing Board, Jutly 9, 2003
~ Decision of Zoning Hearing Board, ZHB Case No. 021-03, July 9, 2003
Writ of Certiorari
Carlisle First Church
705 Glendale Street
Carlisle, Pa.17013
VS.
Borough Of Carlisle
Zoning Hearing Board
53 West South Street
Carlisle, Pa.17013
COMMONWEALTH OF
COUNTY OF
Of God
: NO. 03-4998
WRIT OF CERTIORARI
ENNSYLVANIA)
CUMBERLAND)
SS.
TO:
We, being wi]
between Carlisle
Board
pending before you,
all things conce~nnir
o~urCourt of Coum~Dn
together with this
to be done accordin
WITNESS, the
our said Court, at
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL TE~4
, 2 42003
BOROUI. iH OF CA~! iSLE
DEPT. OF PUBLIC WORKS
ing for certain reasons, to have certified a certain action
'irst Church Of God vs Borouqh Of Cor~isle Zoninq Hearinq
do c~and you that the record of the action aforesaid with
g said action, shall be certified[ and sent to our judges of
Pleas at Carlisle, within 20 days of the date hereof,
Tit; so that we may further cause to be done that which ought
to the laws ~nd Constitution of this Co~nonwealth.
~norable
~arlisle, Pa., the 19th day of .Sept~ber 2003
Prothonotary
CARLISLE FIRST C
Appellant
V.
BOROUGH OF CAR
ZONING HEARING
Appellee
CARLISLE Fl
Hughes, files this al
Cumberland County,
Planning Code, Act
"Planning Code"), ant
1. This Honora
Planning Code, as re
of the Judicial Code, a
2. Appellant, Car
place o fw orship 1 oc~
17013 (herein "First C
"the Property").
-IURCH OF GOD :
LISLE
BOARD,
NOTICE OF APPEAL
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
Civil Action - Law
Land Use Appeal
RST CHURCH OF GOD, by and through its attorneys, Irwin, McKnight &
,peal from a decision of Borough of Carlisle Zoning Hearing Board,
under authority of Section 1002-A of the Pennsylvania Municipalities
)f July 31, 1968, P.L. 805, as amended, 53 P.S. l1002-A (herein the
~n support thereof, avers as follows:
Court has jurisdiction in this appeal pursuant to §l1002-A of the
~cted, Act of December 21, 1988, RL. 1329, 53 P.S. §11002-A and §933
amended, 42 Pa. C.S.A. §933.
sle First Church of God, is a Pennsylwafia not-for-profit church with its
ted at 70 5 G1 endale Street, Carlisle, Cmnberland County, Pennsylvania
hurch"), and owner of certain real propetx'y located at this location (herein
3. Appellee is ti
Pennsylvania (herein
pennsylvania 17013.
4. The Prope~yi
5. At the time t?
permitted use in the
6. Due to a sub
of worship are currenl
7. On or about
Planning and Zonin
Development Plan fol
and parking area.
8. On or about IV
that a special except
submitted Final Land
9. First Church
Board reviewed this
10. The Board by
upheld the Zoning Ma
Zoning Hearing Board of the Borough of Carlisle, Cumberland County,
he "Board") which maintains offices att 53 West South Street, Carlisle,
s zoned as part of an R-1 Low Density Residential District.
at First Chumh constructed its existing place of worship, chumhes were a
-1 Low Density Residential District.
~quent change 'in the Zoning Ordinance for the Borough of Carlisle, places
ly permitted as a special exception under Borough's Zoning Ordinance.
May 8, 2003, First Church filed with the Borough of Carlisle and its
; Codes Manager, Kenneth W. Woraack, a Preliminary/Final Land
the Property for the purpose of adding aaa addition to its existing building
ay 12, 2003, the Carlisle Planning and Zoning Codes Manager determined
on application was necessary in order for the Borough to approve the
)evelopment Plan for First Church's addi.tion project.
>pealed the Zoning Manager's decision ~".o the Zoning Hearing Board, the
atter at its public hearing on or about July 9, 2003.
a unanimous decision of three Board members present at the hearing
aager's determination that a special exception application was required. A
copy of said decisio~
reference.
11. The action of
exception is needed
Land Development
that:
a. The
for the expansion of
change;
for the expansion of a
permitted use at the ti
by the Board is attached as Exhibit "A" and incorporated herein by this
he Borough of Cfirlisle Zoning Hearing Board in determining that a special
a order for First Church to develop its property in accordance with its Final
lan was arbitrary, capricious, an abuse of discretion and contrary to law in
irlisle Zoning Ordinance does not require a special exception application
use permitted by special exception when the use of the Property wil'l not
The C rlisle Zoning Ordinance does not require a special exception application
use permitted by special exception when the existing use as a church was a
ne of its construction and the use of the Property will not change;
c. The
for the expansion of ~
cause potential conflk
d. The C~
expansion of a use pel
exception use and dim
C~ u~lisle Zoning Ordinance does not requh'e a special exception application
use permitted by special exception whan the proposed expansion will not
ts with adjacent uses;
rlisle Zoning Ordinance not require a special exception application for the
mitted by special exception when the proposed expansion meets all special
ensional requirements as set forth in the Carlisle Zoning Ordinance.
3
WHEREFOR
Carlisle Borough Zo
special exception ap
addition to its existin
Date: September 18,
:~, Appellant respectfully requests this Honorable Court deem that the
~ing Hearing Board's determination is contrary to law a nd direct t hat a
~lication for expansion of the Property is not required for its proposed
chumh facility.
Respectfully submitted,
DG,~ & HUGHES
Esq.
· No. 58884
60 ~Vest Pomfi'et Street
C~lisle, Pennsylvania 17013
X,,~4717) 249-2353
Attorney fc,r Appellant,
Carlisle First Church of God
~03
4
Zoning Hearing B~
Borough of Carlisl
ZHB Case No.
Date of Decision: .
OP~
After prope
in the Carlisle Boro
Pennsylv. ania at 6:3
they being Jeffrey
were Chair, Ronald
In addition,
Acting Solicitor, Rc
,ard
021-03
Jly 9, 2003
Re: First Church of God,
Appellant
NION AND DECISION OF ZONING HEARING BOARD
BACKGROUND
advertisement, the Board held a public hearing on Wednesday, July 9, 2003
Jgh Municipal Building located at 53 West South Street, Carlisle,
p.m. Three of the five members of the Zoning Hearing Board were presentl
Benjamin, Acting Chair, Jane R/gler, and, Jeffrey G. Bergsten. Absent
;imons, and member Henry Treffinger.
present were Planning/Zoning/Codes Manager Kenneth W. Womack and
bert G. Frey.
Appellant al ~peals the determination made by the Zoning,Officer on May 12, 2003 that an
application for speci al exception must be submitted to the Zoning Hearing Board for the Plans
submitted by the Aprellant for the construction of an addition to Appellant's existing building.
Present on bfhalf of the Appellant was James Hughes, Esquire.
/
Because the [narter befo, re the Board was solely on the legal issue of the propriety &the '
Planning/Zoning/Coges Officer s determination that a special exception application was
necessary, no eviden :e was presented. However, it was stipulated by the Borough that the
Appellant's use of ti:
of Zoning Ordinance
would currently be I
Residential District.
its records indicate t
property was locate~
permitted use under !
The position
Plans was that becau
special exception hac
there appeared to be ~
conditions by Zonin~
the Zoning I~Iearing Ii
The Appellant takes I
special exception in t
buildings but no char
should be required m.
e property as a place of worship was a lawfully existing use and that because
amendment since its original construction, Appellant's use of the property
,'rmitted as a special exception use in the Borough's R-I Low Density
At the direction of the Zoning Hearing Boant, the Borough confirmed that
at at the time the building permit for the church was issued in 1973, the
in the Borough's R-1 Residential District. A place of worship was a
he ordinance then in effect.
of the Borough Planning/Zoning/Codes Manager on review of Appellant's
;e Appellant's use of the property is permitted as a special exception, but no
been previously issued by the Zoning Hearing Board and further because
tspects to Appellant's plans which might warrant the imposition of
Hearing Board, an application for special exception should be submitted to
oard for review and approval, as determined by the Zoning Hearing Board.
he position that its use of the property is a lawfully existing use permitted by
~e R-1 District. Appellant asserts that its plans propose an expansion of
ge in the use of the property and, therefore, rto special exception application
:rely because of the expansion of the buildings. Russell Bova, a
neighboring prop~
Manager assertin
In the ca
Commonwealth C
whether a use whi~
a conditional use ,;
conditional use. T
to a conditional us,
Township Board o
Based on t
place of w0rship is
District, even thou1
Pennridge dealt wi:
regarding conditiox
Borough Council,
The issue
an application for ~
prior decision by th
ffearing Board by a
a special exception
Section 25.
allow a careful revi,
The special excepti,
each special excepti
standards to consid~
impose reasonable
in the Zoning Ordin
exception, has neve
Appellant's use oft
through an expansic
Hearing Board purs:
The treatme
Ordinance for the tr~
both instances, spec
by right. In the case
In the case of a use
Hearing Board appl
special exception a
Ordinance for the
right rather than a us
those uses, which ar,
exception approval I:
circumveot the saf~
rty owner spoke in support of the determination by the Planning/Zoning/Codes
that special exception review by the Zoning Hearing Board was appropriate.
DISCUSSION
of Pennridge Development Enterprises, Inc. v. Volovnic, 154 PA.
· 609, 624A.2d 674 (1993) the Commonwealth Court considered the issue of
h was a non-conforming use under a prior zoning Ordinance was converted to
'hen a subsequent zoning ordinance permitted that use in the district as a
~e Court concluded that the ordinance change converted a non-conforming use
'. thereby reversing the lower court and upholding the determination by the
'Supervisors that a conditional use application was required.
~e Pennridge decision, we conclude that the Appellant's use of its property as a
lawfully existing use permitted by special exception in the R-1 Zoning
it was a perm/tted use in 1973 when the church was built. The fact that
t a conditional use rather than a special exception use is immaterial. The law
al uses and special exceptions is virtually identical. Sheetz v. Phoenixville
PA Commonwealth Ct. ,804A.2d 113 (2002).
efore the Board is whether the Appellant's expansion of its building requires
>ecial exception before the Zoning Hearing Board s'nce there has been no
e Zoning Hearing Board approving the special exception use. The Zoning
unanimous decision of the three Board members present has determined that
application is required.
-177.A. clearly states that the purpose of the special exception process is "to
:w of uses that have some potential of conflicts with adjacent uses or areas."
~n procedure coniemplates careful scrutiny by the Zoning Hearing Board of
an use. The Borough Ordinance gives the Zoning Hearing Board specific
r in granting a special exception and allows the Zoning Hearing Beard to
onditions and safeguards in granting a special exception. Because of changes
race over time, the Appellant's use, which is now perm/tted as a special
been reviewed by the Zoning Hearing Board. Therefore, any change in the
te property, whether that be to a different use or an expansion of the use
n of the existing building requires special exception review by the Zoning
rant to Section 255-177.
~t of the Appellant is consistent with the procedure contained in the Borough
:atment of the expansion of a non-conforming use. See Article XXI 11. In
al treatment is required for a n expansion in a use that is no longer permitted
of a nonconforming use the Borough Ordinance sets specific requirements.
emitted by special exception, the procedures for review by the Zoning
· To allow the Appellant to expand its building without the requirement for
~roval, as suggested by the Appellant, is inconsistent with the Borough
tson that it would treat Appellant's use of the property as a use permitted by
: permitted by special exception· The Borough Ordinance clearly delineates
permitted by right, and those uses, which are permitted subject to special
t the Zoning Hearing Board. To ignore the difference in treatment wonld
tards established in the special exception prncess.
Anyone a~
County Court of C
JeffrC)5[~genja~
Date
J r
- y- . gster
grieved by this decision of the Board has the right to appeal to the Cumberland
>mmon Pleas within 30 days frr~m_the day.9~f_tll~,d, ecision.
~ 2C~ Date .;
I the undersign
Appoeal was served b3
following:
CERTIFICATE OF SERVICE
ed hereby certify that on this 19th day of September, 2003, a copy of the Notice of
first-class, postage prepaid United States mail in Carlisle, Pennsylvania upon the
Borough of Carlisle
Attn: Kenneth Womack
53 West South Street
Carlisle, .PA 17013
Stephen D. Tiley, Esquire, Solicitor
Zoning Hearing Board
5 South Hanover Street
Carlisle, PA 17013
Russell Bova
709 Yorkshire Drive
Carlisle, PA 17013
884
(717) 249-2353
Attorney for the Appellant,
Carlisle First Church of God
2
Carlisle ~irst Church of God, Notice of Appeal
June 17, 2003
ZONING HE. ARE
BOROUGH OF C
(I) (We)
(HOME PHONE)
decision be issued
~ An appeal o£a
qG )ARI)
,~RLISLE
53 We~t South Street
Carti~le PA 17013
NOTICE OF APPEAL:
[~ A special excel Uon.
[] A variance mia mg to:
Which pena/m to ti
Article .a~27
[] Area [] Frontage
[] Yard [] Height
[] Use []
Carlisle Borough Zoning Ordinance:
Section .~s-/7 P~ph
.am/cie
Article
Article
Section. P~ph
Section. Para=~aph
Semon. Paragza~ ph
The desc~ption oft
Location of pro!
Zoning District:
Presen~ Use:
Proposed Use:
Ovraer of Prope:
Relation.skip of.
Attach the follov~
[] Statement of wi
te prope,'w involved in this appeal is a~ follows:
)wrier of r~orcL
arty to & sales
arty to a lease agr~ eement_
*.he Zoning Hem-lng Board should approve the request.
[] Sketch plan
Date Hem-q_ug Advertiser
Fee .'~150 Fee P~ id
uired for area and bulk variances.
,j t:~tee,~ [e?¢,tr~,,*nr,*I
ATURE OF ?~iiiiONER
SIG~NATURE OF
AppealNumber ~/"O &
Receipt No. Cost of Tramaipr
ZONING I:nZ~ARI]
BOROUGH OF C
Applicaufs Name
Property Location
I attest th~ the b¢lo
· record of property
//r~_ ert-v Owners
(G. ~ARD
~RLISLE
,3 West South Street
Carlisle PA 17013
ZHB Case No. ,~,Z / - ~ ~
Con~nue on back
represents a contplem a~d accurate list of all known ownem of
rirhin twO hundred (200) feet radius of the lot lines of the prope.w7
th/s
lame ?roperrv Address Owne,s Mailing ~_ddress
PEG Inc.
c/o Earl M. Bamhart
800 Belvedere Street
Carlisle, PA 17013
Russell & Candace Bova
709 Yorkshire Drive
Carlisle, PA~ 17013
Margaret L. McGinn
72l Yorkshire Drive
Carlisle, PA 17013
James & Charlotte Ayre
708 Belvedere Street
Carlisle, PA 17013
Philip & Elizabeth Lockhart
804 Stratford Drive
Carlisle, PA 17013
First Church of God
705 Glendale Street
Carlisle, PA 17013
Belvedere Associates
850 Walnut Bottom Road
Carlisle, PA 17103
Thomas & Monica Frederick
1031 Rockledge Drive
Carlisle, PA 17013
Walter H. Heckman, Jr.
725 Yorkshire Drive
Carlisle, PA 17013
June B. Trinnaman
704 Belvedere Street
Carlisle, PA 17013
Michael & Gwendolyn Minnix
3287 St. Andrews Drive
Chambersburg, PA 17201
Steven Earl McKinley
10210 Epislon Road
Richmond, VA 23235
Brian & Cynthia Kramer
717 Yorkshire Drive
Carlisle, PA 17013
William F. Lighmer
712 Belvedere Street
Carlisle, PA 17013
Robert & Sally Chant
700 Belvedere Street
Carlisle, PA 17013
Charles & Mildred Brace
900 Stratford Drive
Carlisle, PA 17013
3
Public Notice, Zoning Hearing Board Meetings
July 9, 2003
NOTICE IS HEREB
Wednesday, July 9,
West South Street,
will also be taken ar
No. 016-03 (ContinL
57 South College St
of the Carlisle Zonin
accessory use or sp
convert this single-f~
No. 018-03. A requ{
York Road (C-3 Ger
Ordinance permits a
specific requirement
applicant proposes t
adjacent lot and con
No. 019-03. A requ~
for Less for a varian,
Commercial District)
one or more signs tc
that the total area of
one (1) linear foot of
Applicant proposes 1
signage on a buildin,
length.
No. 020-03. A requE
Street (R-2 Medium
Ordinance requires
District. The applica
and one-half (4.5) fe
No. 021-03. An app
submitted by Dougla
Street (R-1 Low Den
Ordinance permits a
The applicant propo,,
eighty-four (10,484+
determined that spe(
KENNETH W. WOM
Zoning Officer
NOTICE
Y PROVIDED that the Carlisle Zoning Hearing Board will meet on
2003, at 6:30 p.m. in the Borough Hall of the Municipal Building, 53
;arlisle, Cumberland County, Pennsylvania, at which time testimony
a complete hearing held on the following:
tion). A request submitted by Dickinson College for a variance at
'eet (R-4 Town Center Residential District). Sections 255-36/37/38
Ordinance do not permit an office as a use permitted by right,
,~cial exception use in the R-4 District. The applicant proposes to
.mily semi-detached dwelling into an office.
~st submitted by Mark E. Danowitz for a special exception at 170
eral Business District). Section 255-67 of the Carlisle Zoning
uto sales as a special exception use in the C-3 District subject to
identified in § 255-178A(7) of the Zoning Ordinance. The
subdivide (consolidate) the current lot used for auto sales with an
:luct auto sales on the newly created lot.
~st submitted by Bill Moore and Associates on behalf of Ross Dress
:e at the Carlisle Commons Shopping Center (C-2 Shopping Center
. Section 255-199B(2) of the Carlisle Zoning Ordinance permits
be attached to or mounted on a single building elevation provided
such sign or signs does not exceed one (1) square foot for each
the building elevation upon which the sign or signs are erected.
) erect approximately two hundred ninety-one (291) square feet of
elevation approximately one hundred forty-one (141) feet in
st by Fred and Margaret Seltzer for a variance at 515 W. North
3ensity Residential District). Section 255-251 of the Carlisle Zoning
five (5) feet side yard setback for principal buildings in the R-2
r~t proposed to construct an attached carport which extends four
)t into the required side yard setback..
,~al of a determination made by the Zoning Officer on May 12, 2003,
s S. Brehm on behalf of the First Church of God at 705 Glendale
sity Residential District). Section 255-17A of the Carlisle Zoning
place of worship as a special exception use in the R-1 District.
;es to construct an approximately ten thousand four hundred
square feet addition to the principal use. The Zoning Officer has
..iai exception approval is necessary for this addition.
~,CK
4
Proof of Pul }lication for Public Notice, ZHB Meeting,
July 9, 2003
State of Pennsylvania,
County of Cumberland.
Lori Saylor, Classified Ad,~
of the County and State afore~
gen~'ral circulation in the Bor;
1881, since which date THE S
or publication attached heret(
issues of THE SENTINEL on t
Copy of Notice of Public
PROOF OF PUBLICATION
~=rtising Manager of THE SENTINEL,
~aid, being duly s~/orn, deposes and says that THE SENTINEL, a newspaper o
,ugh of Carlisle County and State aforesaid, was established December 13th,
-:NTINEL has been regularly issued in said County, and that the pr ntad not ce
is exactly the same as was printed and published in the regular editions and
following dates, viz
~tion
June 25 & July 2, 2003
that he is not interested in
tter of the aforesaid notice or
and that ail allegations in the
to time, place and character
are true.
July 9, 2003
My commission expires:
;ubscribed before me this
July ,2003.
9th
Notary Public
5
Irv~in, McKnight, & Hughes Letter
to Z6ning Hearing Board, July 8, 2003
JUL-06-2003 04:$0RI FI~I~UI,
FL4 TELECOPY 243.
ROBERT G. FREY, l
FRIIY & TrL~y
S SOUTH HANOvEI~
CARLISLe, PA 1701~
RE: CAI/LISLE ~
Dear Rob:
A~ you are awa
determination from thc
special exception as a r~
dis~m~ons, ~ lcttor s
any special exception
By way of bat
exeeptio~ at the request
meatin$, your panner, .~
Church ~ n~ded to
the same even though fl
position, Mr. Womaek i
Church, ss a non eonfo~
expansion, stmcmra! or
from an adjacent !andre
Sul~cquc~t to t
of the neighbors aad fill
development plaa as fil~
Church review the i~su{
Board.
The Church wa:
enactment of ally zOninl
permitted uses by speci~
residential districts. On
effectively re-designate,
The ~ case concemin
re Uoeer St. Clair Tow~
township otc~a~co pe~
I~KNI~HT & HUG,S LAW OFFICES ~71T24063~4
T-Z00 P.002/005 F-TH
LAW OFIqCES
[RWIN McKNIGHT & HUGHES
July 8, 2003
441 ONLY :'
STREET
)NING HEARING BOARD / CARLISLE ~tRST CHURCH OF GOD
'e, our client, the Cadisle First C'hurch of God CChurch"), is seeMa$ a
."'arlislc Zoning Henrini Board as to whether the Chun:h is requized to apply tbr a
suit of its consu'uctin$ an addition to its existing church facility. Per our previous
mil outline the position of the C'm'lisle Fkst Church of God disputing the need for
aruval ss determined by Ivh'. Kenneth W. WomaclL zoning officer.
~und, the Church had previously submlued an application for a special
~fthe Carlisle Borough staff earlier this sprin$. At that Zoning Hearing Board
tcphcn D. Tile)', Esquire. as Solicitor, raised the question as to whether thc
~e applying for this special exception given that the use of the property remained
e actual building rdructurc was being expanded. While I concurred with that
adicated that the Borough Solicitor, Edward Schorpp, F_.aquire, had opined that the
rainS use, rrtust obtain special exception approval prior to undertaking any
otherwise. After much discussion with the Board and hea~ing humerus concerns
reef, the Church decided to withdraw hs application.
tis meeting, the Church revised its plans taking into aCCOunt some of the concerns
d its land development plan..at the planning commission meeting on the land
d, the cornm!~aion recommended apl~'oval of the plan bm recommended that the
concerning whcther a special exception was needed with the Zoning Hearing
, constructed and has operated solely as a church for many years prior to the
;ordinances, At the rime the subjec~ propen'y was zoned, place~ ofworship were
I exception under Section § 25~-I 7 of the Borough Code in R-I Iow density
;e that ordinance becamc effective, all existing churches in R-I dis~rias were
[ from heing non-conforming uses to permitted uSes by way of special exception.
~ this issue was de~ided by thc Pcunsylvama Supreme Court ca~c in the casa of.itl
shin Oranee No. 203-~ 152 A.2d 76~, 77 l (1959), which ruled that since a
aitted church use in a residential zone "sub~ect TO township approval," a church
JUL-OS-ZOO3 04:51N FROI~.I RWlN,
Robert ~ey, Esqu~
Re: Carlisle First Church
July 8.2003
which e~sted in said re
a penm'aed ~se after th~
Fi_~t Church ~t' God is ~
permJued by special ex~
More recently,
Pm~-id2 Develonmen
an ordinance was ehanj
o~dinance was e~acted,
lat~' decision, the Con,,
akport which existed b~
one, ~m/th v. Zonint ~
As a pannitted
with the Borough Zonir
exactly the same as it w
to the church eo~orms ~
th~ land development p~
already deemed zo be p~
By copy of this
Church's positkm.
In the event thn
disa~ecment a~r you ]
giw me a call.
Thank you for ~
JDH:clc
cc: Mr, Kenneth Wo~
Edwa~ Schmpp,
~IGHT & HOG,E; LAW OFFICES
T-ZOO P.003/OM
~God
len~al zone pr/or to the e~actment of-b,- zoning ordinance was to be co~sideted
cgdiaance was passed and not a non-conforming tLse. Accordingly, the Carlisle
Leealed to be a special exception currently because places of worship aw now
;epfion in an R-1 zone.
he Peansylvania Contmonwcalth Court has continued this same line of reasonin$.
Enterl~se~, In~, v. 9olo~ik 624 A.2d 674, (~. C~w. 1~93), held ~ wh~
~ w ~ a~s ~ a ~io~l use, m ~n w~ e~st~ ~f~ ~y
~t ~m ~in8 a non~onfo~i.~ ~ to a ~ ~e, Citing P~n~ ~ a
~o~ Co~ ruled that wh~ a~ ~ all~cd by s~ial ~c~fion,
~ the o~cc ch~ w~t ~m ~ a n~f~i u~ lo a
e~e B~d ofConewa~ To~s~, 713 A.2d 1210, 1213 (Pa. Commw.
ise, the Church is simply seeking to expand iLS ~xisiing s~ucture in accordance
O~e. h should not have to apply for a special excqxlon because its use is
before, that of a place of worship. Tha'efore, as long as d~e s~mcmral addition
vith the applicable zoning ia place at the time it i:s approved for conmuction via
~m, the~ is no need to apply for an additional special exception because it is
rmitled by special exception by virtue of this use predating the existing zoning
Letter, I am seadiag the same to Mr. Womack and Mr. Schorpp to clarify the
you hav~ any questions concemhtg the above or any other reasons for
~ave had the opportunity to review the ~elevant case law, please do not hesitate to
our cooperation in this matter.
Very u'uly yours,
~W~IOHT & HUGH~$
hack (via facsimile 249k,~,~Ta.~ly)
Esquire (via facsimile 243-1850 only)
6
Transcripl of Proceedings, Zoning Hearing Board
July 9, 2003
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IN RE:
Di
Gl
CARLISLE BOROUGH ZONING }{EARING BOARD
CARLISLE, PENNSYLVANIA
APPEAR_AN
IR
BY
21-03
mglas
)d
S. Brehm on behalf of the First Church of
2ES:
TRANSCRIPT OF PROCEEDINGS
BEFORE: JEFFREY H. BENJAMIN, Chairperson
TIMOTHY A. HOY, Member
JANE RIGLER, Mew~er
JEFFREY G. BERNSTEIN, Member
ROBERT M. FREY, Solicitor
KENNETH W. WOMACK, Zoning Officer
DATE: July 9, 2003, 8:00 p.m.
PLACE: Carlisle Borough Building
53 West South Street
Carlisle, Pennsylvania
MCKNIGHT & HUGHES
JAMES D. HUGHES, ESQUIRE
FOR - APPLICANT
Deborah Ruggiero, Notary Public
Registered Professional Reporter
Reporting Services
· 717-258-3657 · 717-258-0383fax
courtreporters4u@aol, com
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appeal
Church
present
determir
May, 20(
Church
zoning
a speci
approxin
principa
determir
this add
this ch~
area zor
that is:
the chu~
district
2
MR. BENJAMIN: This is number 021-03, an
ubmitted by Douglas Brehm on behalf of the First
f God. Have we followed the order of Mr. Womack
ng an overvfew of the case?
MR. WOMACK: Yes. This is an appeal of the
ation made by the zoning officer on the 12th of
3 submitted by representatives of the First
f God, 705 Glendale, Section 55117(a) of the
rdinance in place limits the place of worship as
1 exception in the R-1 district.
The applicant proposes to construct
ately 10,000 square foot addition to the
use there. And the zoning officer has made a
.tion that a special exception is required for
ition. You have the letter, I believe.
MS. RIGLER: Mr. Womack, in what year was
rch constructed?
MR. WOMACK: I don't know.
MS. RIGLER: Well, in what year was this
ed?
MR. HUGHES: I think we will be addressing
ue, but I think it's probably fair to say that
ch was there well before any zoning in the
MS. RIGLER: You don't know what years?
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yourself
Irwin Mc
the Carl
losing
may rec
project
applicat
recommer
withdra~
first o~
discussJ
excepti¢
neighbo]
motivat~
constru(
that an(
that we
really,
the chu~
MR. HUGHES: No, ma'ams.
MR. BENJAMIN: Would you care to identify
MR. H~GHES: My name is Jim Hughes with
night & Hughes here in Carlisle and I represent
isle Borough Church of God. Unfortunately, I'm
y voice a little bit.
As Mr. Womack indicated, and as some of you
11, we have been basically }previewing this
before this board previously. We had an
ion for special exception which had been
ded by staff at that time. And we ended up
ing that application for several reasons, the
which is -- if you also recall, there was
on as to whether or not we even needed special
n. That was one of our first concerns.
And the second concern was that some of the
's had come forth and indicated that they had some
)ns for the plan that we were trying to
And after that meeting, we took a look at
certainly agreed with some of their assessments
needed to take another look at the situation. So
our issue before you tonight is whether or not
ich needs to reapply for a special exception in
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light of
we are e
way of a
after th
redesign
on in th
plan.
any chan
that, we
indicate
the neic
quite cc
propert}
back 33
developn
Council.
and rec~
develop~
was whet
counsel
indicat~
4
the fact that our use is not changing, but that
~panding the facility.
And one of the big questions -- maybe by
little background. When we had come before,
discussion, we went back and re-engineered and
d the facility or the expansion that was going
church, and we submitted the land development
That was done in May of this year prior to
es in the zoning ordinance. And when we did
had changed -- the zoning ordinance at the time
that there was a 10-foot setback. And one of
bors, Mr. Vogel, who is here this evening, was
ncerned that that was going to impact his
so we reengineered it. We moved the building
1/2 feet. And that was part of the land
ent plan which is currently before Borough
We then went before tlhe Planning Commission
ived a recommended approval on our land
ent plan, but one of the big concerns they had
her or not we needed a special exception.
And Mr. Womack, acting on the advice of
or of the Solicitor for Borough Council,
d that we did need a special exception.
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for that
the zonJ
your zor
213, it
nonconf¢
excepti¢
nonconf,
buildin,
special
were we
excepti¢
Womack
permitt.
were we
and get
been the
this boa
gone th~
mention~
1994 an,
5
And it was my understanding that the reason
was because the church had been there prior to
ng ordinance, that we were a nonconforming use.
And a~' a result of that, if you look at
ing ordinance, specially I think 255, Section
says, subparagraph 3, any expansion of a
rming use shall only occur as a special
n.
So the thinking there was, if we were a
rming use, then regardless ,of whether the
is 10 foot, we had to go tlhrough and get a
exception. And that's where the issue came in --
a nonconforming use or were we a special
n?
When the zoning ordinance came in, Mr.
ndicated the church is in an R-1 zone, we are
d by special exception. The question became,
grandfathered into this or did we need to come
a separate special exception even though we have
re for years?
Through discussions with the Solicitor of
rd as well as conversations with staff, we had
ough -- you will see a copy of my letter which
several cases, two of whiclh are most recent.
1998, a Commonwealth Court case which, while the
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facts we
agreed
when yo
exceptic
the zoni
prior tc
when the
excepti¢
use, thc
this bo~
agree wJ
that we
So ther(
puts us
do from
current[
you are
excepti(
written
conditi(
6
re different, they did have some discussion and
ith a previous Supreme Court case from 1959 that
have a situation where you have a special
n or a condf~ional use, which is then put into
ng ordinance and the structure or the use existed
the time of the zoning ordinance, that they,
zoning ordinance is enacted, become a special
n or conditional use.
The 1994 case had to do with a conditional
1998 case had to do with special exception.
It is my understanding that counsel for
rd as well as counsel for Borough Council would
th this summation and that these cases indicate
~re not a nonconforming use.
In this case, we are ~ special exception.
!ore, given the fact that the zoning ordinance
in that zone, we now are a special exception.
The next problem comes in, well, what do we
there? And the zoning ordinance, which we
.y have, as we just mentioned, does say that if
a nonconforming use, you have to go get a special
)n.
But the zoning ordinance, the way it is
today, does not mention what happens if you are a
>hal use or a special exception if you predated
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the zon~
we feel
back th~
first bc
doesn't
followir
light mc
fact the
require
needed
reason.
side, wi
took it
if some~
conditi~
come ba~
approva]
expand
that th
purpose:
in use.
7
ng ordinance.
I guess we have two particular reasons why
~nd the church feels that we don't need to go
~ugh this process to get a special exception, the
ing that the ordinance, the zoning ordinance,
require it.
And if you look at all the caselaw
g that, the zoning ordinance is to be read in a
.st favorable to the applicant. And given the
t the zoning ordinance doesn't address it or
it, we didn't see a reason 'why we necessarily
o go through the exercise.
That really isn't the most important
I think the one that struck us was the practical
~ich is, what is the implication if this board
as its practice to require any kind of expansion,
,ne predated the ordinance and they were either a
~nal use or a special exception, do they need to
~k into this board and get special exception
if their use didn't change?
Certainly, if the church was going to
nd they were going to put in a flea market so
!y could raise money for whatever charitable
they wanted to partake, that would be a change
And certainly, I think there's no question that
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we would
for that
operated
additior
suppose
come in
change
or to
they predated the zoning ordinance, and they were
by either special exception or by conditional use,
would hive to come in here and get approval under
mainten~
to me o2
intent
legal
Borough
disagre~
are a
that.
have to come back in and get a special exception
use.
In this case, it's stlll a church. It has
as a church for many years, and that's what the
is going to continue to be used for. And I
hat if you look at someone that was going to
ust for a building permit, if they were going to
'en the slightest of dimensions to their property
e structure, and they were in a situation where
there
they
nce. And it doesn't seem to make a lot of sense
be very logical and we don't feel that was the
f the ordinance, to require that to occur.
RIGLER: Essentially, you are making a
MS.
a ~gument.
MR. HUGHES: Right.
MS. RIGLER: And as I understand it, the
Solicitor disagrees with you, right?
MR. HUGHES: Well, I don't know that he
~s. I guess he agrees that -- he agrees that we
si~ecial exception. I think he would agree with
MS. RIGLER: As I understand, the Borough
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give
Solicitc
opinion.
Most of
your bos
not ever
asserts that before you can expand, we need to
a special exception. That's the Borough
's position?
MR. HU~HES: Initially, that was his
I had talked to him in light of my letter.
conversation has been with the Solicitor from
MS. RIGLER:
MR. HUGHES:
MS. RIGLER:
seen this?
MR. HUGHES:
This is dated yesterday.
Right.
Is it possible Mr. Schock may
I am assuming he probably has.
I faxed it to him. However, the conversations were more
Solicitor of your board, not necessarily Borough
with
Council.
MS.
~ us, not persuade our Solicitor,
MR. HUGHES:
MS. RIGLER: this
evening, right?
MR.
MR.
a legal argument,
Solicitc~r his opinion. We had sent the letter. We had
ongoing discussions with the Solicitor and showed them
RIGLER: But essentially, you have to
right?
Correct.
And we only saw this,
WOMACK: Correct.
HUGHES: And assuming that because it is
that you probably would ask the
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what cages we had to determine whetlher or not we were on
the rlc t board.
MS. RIGLER: But I think you agree with me
that th~ borough is also a party to these matters.
MR. HUGHES: We have a land development
plan in front of the borough.
MS. RIGLER: So wouldn't it be relevant for
us to h~ the Borough Solicitor's opinion as well?
MR. HUGHES: I don't necessarily think
that's .he case. I think when we go before the Borough
Council with our land development, if the Borough Council
wants t( make that an issue, certainly, then we are going
to have to deal with that issue at that time.
The recommendation from the Planning
Commiss~.on was, go to the Zoning Hearing Board and get
their ti hts on the matter. That is, of course, a
recomme]~dation and knowing that we had the land
developl plan already in place.
I guess our concern is the fact that we do
need all of the dimensional requirements and other
requirel of the zoning ordinance, which is why we
submitt,~d the land development plan instead of coming
back hei~e for a special exception when we've been there
for yea~s.
When we were up before this board before,
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there we
be here
it. But
positior
when we
had sai¢
withdra~
this se(
before
that we
use.
going
matter
require
come
address
church
doesn't
are not
underst~
feet fr~
11
discussion about whether or not we needed to
.nd why. And there were discussions surrounding
nobody at that point had any definitive
Mr. Schorp had already made his decision
were here the last time. He, through Mr. Womack,
~ what you need to be doing after -- after we had
'n our application. As to what his position is
ond, that I don't know.
It's our position that in bringing this
he board, we don't think there's much question
are a special exception and not a nonconforming
.e issue becomes, particularly, how is this board
, deal with these matters? Are you going to say a
~f practice and course, yes, we are going to
all special exceptions and conditional uses that
lore our board, even though the ordinance doesn't
it. And is that a very practical thing? And the
lelieves that in both of those instances, it
make a lot of sense.
MS. RIGLER: Let me ask you this. If you
required to have a special exception, then as I
Lnd your argument, you could put that building 10
~m the property line?
MR. HUGHES: That would be correct, because
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of the
So if y,
it coul¢
10 feet5
do that
us, of
you was
been to
special
officer
zoning
will no
until w~
Hughes
require
before
12
oning.
MS. RIGLER: Because that was the setback.
u are not required to have a special exception,
be right u~'against those residences' property,
MR. HUGHES: It could be. We chose not to
obviously, but --
MS. RIGLER: We don't have that in front of
purse.
10
MR. HUGHES:
MS. RIGLER:
feet, correct?
MR. HUGHES:
No, we don't.
And the last thing we saw from
Correct.
MR.
appeal to us to not have to make that
exception, is that right?
MR. HUGHES: Right.
MS. RIGLER: He's saying that the zoning
BENJAMIN: Your approach so far has
decision on
as a matter of law, is incorrect because the
.fficer has determined that the zoning officer
issue the appropriate permits for this building
decide to give a special exception. And Mr.
saying, that's legally incorrect. He's not
to get a special exception from this board
he zoning officer can be compelled to issue
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buildin¢
heard n
fight it
Hughes'
solicit(
memoran(
nor has
got Mr.
meetin¢
the rest
the way
Solicit(
are rai~
continu~
reasona~
rest of
13
permits. Is that an accurate statement?
MR. HUGHES: That is accurate.
MS. RIGLER: Right. And I guess we have
thing from Mr. Womack on the law here, but the
between Mr. Womack's legal opinion and Mr.
legal opinion. We haven't heard from our own
,r. Mr. Womack certainly has not prepared a
~um of law on this issue for us --
MR. FREY: Nor the Borough Solicitor.
MS. RIGLER: Nor has the Borough Solicitor,
the Zoning Hearing Board's Solicitor. And we just
Hughes' legal views right before tonight's
MR. BENJAMIN:
of your argument.
of making that.
MR. HUGHES:
MR.
,r and Mr.
~ng.
Then I propose that we hear
I assume you are well along
Correct.
BENJAMIN: Then we, as a board, ask our
Womack the kind of questions that you
MS. RIGLER: Yes, but we may want to
because Mr. Schorp hasn't weighed in on this.
MR. BENJAMIN: We may, and that's a
le component, but my proposal is that we hear the
his argument to the case or proceed. And then
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we'll t~
going --
our opi~
haven't
was a c!
after ti
chose t(
excepti<
excepti(
are not
special
ordinan~
develop~
a reasol
when yol
situati~
with a
should
is befo
built?
14
~lk after you are finished.
MR. HUGHES: That I think certainly is
I was kind of going through what the law was and
The big issue for us is the fact that we
changed the use. The use is still a church. It
~urch before the zoning ordinance, it's a church
~e zoning ordinance, other than the fact they
put churches under all one district as a special
We feel by law that we are now a special
,n and there would be no reason for us, since we
changing the use, to go through and get another
exception.
As long as we abide by all the zoning
~es mentioned, that's the reason we have a land
lent process. As long as we do that, we don't see
for it. It didn't seem to make a lot of sense
zoning ordinance currently doesn't address the
~n, it doesn't require us to do it like it does
[onconforming use, and therefore, we feel we
:ontinue through the land development plan, which
· e council.
MS. RIGLER: In what year was the church
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zoning
80s .
the
sure it
ordinanc
but fror
enacted
In fact
convers
that ha!
exact t~
after t]
the whol
would a]
that th~
15
MR. HUGHES: '73.
MS. RIGLER: And in wlhat year was the
rdinance passed, Mr. Hughes?
MR. HO~HES: I think it was in the early
MS. RIGLER: We didn't have zoning until
In what year was this part of town zoned? Your
was built in '73.
e in the borough?
MR. HUGHES:
When was the first zoning
I don't know the exact date,
my understanding of the zoning ordinance,
after the church.
MS. RIGLER: You don't know --
MR. HUGHES: I do not know the exact year.
it was
the repesentations are from Mr. Schorp and in my
.tions with Mr. Frey and again with Mr. Womack,
never been an issue as to whether or not the
ming -- it was always understood that it was
Le time -- because, obviously, that would change
MS. RIGLER: Yes.
MR. BENJAMIN: The laws that you have cited
~ply or not apply based on the sequence of events.
MR. HUGHES: And you will see in the letter
initial case, a 1959 Supreme Court case, dealt
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with th,
Commonw,
certain
was in
that zc
excepti,
excepti,
violati,
the chu
never w,
And Itl
fact, i
permitt,
the chul
the chul
16
issue -- the other ones cite that case -- the
alth Court does cite the Supreme Court case. But
_y, the zoning was in effect --
MR. B~NJAMIN: You don't have the answers.
MS. RIGLER: Well, if the zoning ordinance
~ffect before the church was built, okay, and in
le, churches were only permitted by a special
in and this church did not get a special
MR. HUGHES:
MS. RIGLER:
Correct.
-- then it's operating in
)n of the zoning ordinance, right?
MR. HUGHES: That could be the case.
MS. RIGLER: For whatever reason, you know,
~ch is only permitted by a special exception.
MR. HUGHES: To my kncwledge, the church
~nt through a special exception proceeding.
MS. RIGLER: And that's what I understood.
link the record is clear on that. But if, in
was zoned in such a fashion that churches, while
d, were only permitted by special exception and
~ch, you know, innocently, failed to get one, then
~ch currently is violating the
MR. HUGHES: Correct.
MS. RIGLER: That's why
zoning ordinance.
it's important to
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know wh~
case, ti
critical
that til
right a~
convers~
Tiley,
again,
was aft
facts o]
a decis
in fact
place,
certain
before
that if
17
~t year the zoning ordinance --
MR. HUGHES: And if that was, in fact, the
len we would apply for special exception.
MS. RfGLER: That's among the reasons why a
fact is, in what year was the ordinance adopted.
MR. WOMACK: And what was the ordinance at
e.
MS. RIGLER: That's right.
MR. HUGHES: And again, I don't know that
we stand here at this moment based upon my
tions with Mr. Womack and -- well, actually, Mr.
low Mr. Frey -- I believe that was discussed. And
.t was a consensus between those parties that it
MS. RIGLER: Right, but we don't have those
the record in front of us.
MR. HUGHES: If you, in fact, were to make
on tonight and conditioned on the fact that if,
it turned out there was a zoning ordinance in
~here was a special excepticn at that time, we can
.y stipulate --
MS. RIGLER:
~s again.
MR. HUGHES:
just
Then you have to come back
And we could restipulate to
to cover that. In rendering your
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decisio~
should
don't k
the ass~
request
answer?
mind?
to get
be a fa
that.
Mr. Wom
August?
Wednesd~
9th, I
18
if that's a concern --
MS. RIGLER: Well, I think you agree it
a concern.
MR. HUGHES: I certainly agree. And I just
iow exactly -- everybody has been operating under
[mption well after that point in time.
MR. BENJAMIN: What would your position or
be if we delayed a decision until we had that
MR. HUGHES: Did you have any time frame in
MR. BENJAMIN: I don't know what it takes
in answer but --
MS. RIGLER: That's assuming that's going to
~t.
MR. HUGHES: I don't have a problem with
~he thought would be that we are scheduled -- and
~ck gave me the date of the land development plan,
MS. RIGLER: And when is our meeting in
MR. WOMACK:
Ly prior.
MS. RIGLER:
~hink.
MR. WOMACK:
Your meeting would be the
Our meeting would be like the
Your meeting would be on the
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2nd.
because
board's
time pr]
We don't
with tin
when we
finishe¢
Womack'~
Your lo¢
making
come fc
already
square
fact,
somethir
are not
19
MS. RIGLER:
the 1st is Friday.
MR. WO~ACK:
MR. HUGHES:
Our meeting is not the 2nd
Then it would be the 7th.
Certainly, if that is the
choice, we would not object to that. We want a
or to us going over the land development plan.
want to get into a time problem with the borough
e issues.
MR. BENJAMIN: We'll discuss our actions
undertake it. I want to make sure you are
with your appeal first.
Do you have any more, Jane?
MS. RIGLER: I may after I hear Mr.
legal argument.
MR. BENJAMIN: I just have one question.
ic was -- I think your words were, if somebody is
small change, we shouldn't have to repeatedly
a special exception when a special exception has
been approved. And I guess I look at a 10,484
oot piece as not a small change.
I also assume that that is space that -- in
u don't have that space today. You must be doing
g different in that 10,484 square feet that you
doing today or else you wouldn't need it. So
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help me
B, how
already
it.
to be ti
there w~
adopt ti
as to w!
you ope:
smallesl
consist~
excepti(
before
expansi
special
us to a
feet is]
be some
Womack
as asp
where ii
2O
understand why A, this is a small change and then
his is going to be used to do stuff you are
doing today but you don't have the space to do
MR. HUGHES: If you understood my inference
~at we were making a small change, my comparison
.s solely for the purpose of stating that if you
~ls procedure -- it's not in your report currently
~ere you are supposed to go in this situation.
Is there going to be a difference as to how
'ate in a larger expansion versus even the
of expansions? That you are going to stay
nt with the approach that in all special
~ns and conditional uses, if they were there
he ordinance and had come in and made any
,ns, then they need to go through getting a
exception and conditional use.
That was my only point. It wasn't comparing
small expansion because certainly 10,000 square
t.
With regard to your point as to, there must
:hange in use, in your ordinance -- and Mr.
lentioned 255-17, which permits places of worship
~cial exception. It references Section 178-A-32
specifically mentions places of worship.
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subsectl
the ord
worship
the fell
so fortl
clearly
things.
ordinan,
contemP
church.
a churcl
which al
excepti,
the que~
issues
way you
additio~
currentl
area, tl
They ha'
21
It has -- and you will see there -- four
.ons that go through the type of uses that I think
.nance has in mind when they' talk about places of
Certainly, what we are doing by putting on
.owship hall and classrooms for Sunday school and
l, which can also be used fcr worship services,
falls within at least the first three of those
So I don' t think even under your own
.~e, that we are changing any' use as to what was
.ated by the church. It's still going to be a
We are still going to be performing the uses as
and not branching out outside of these things,
e already listed here as a part of the special
)n.
MR. BENJAMIN: Again, we haven' t answered
~tion of expansion and the special exception
)efore us, but are these being currently -- the
are going to use this 10,000 square foot
~, are you currently doing those things?
MR. HUGHES: Within the facility, there
.y is fellowship going on. They have a kitchen
~ey have a luncheon, they are holding a luncheon.
re Sunday school rooms where they are holding
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Sunday ~chool. It's just now they are going to have a
larger ~pace to do the fellowship hall, a separate
fellowship hall instead of converting a sanctuary into
that or
And the
adequat~
simply
continu
one.
pretty
for a s
for the
might c~
have sa
assume
excepti~
assumptl
somebod~
don't nl
want to
the hallway'~here the kitchen is.
Sunday school room sits there, but they are not
to meet their requirements.
MR. BENJAMIN: So you saying that you are
elocating current activities?
MR. HUGHES: Correct. Expanding to
with the use that has been in place from day
MS. RIGLER: I think I'm missing something
asic here. The reason you don't want to apply
)ecial exception is because you are looking out
rest of the world and all these other people who
>me before us. It sounds like that is what you
.d, is that right? And why don't you -- I would
.t's okay for somebody to apply for a special
>n even when she doesn't need it.
MR. HUGHES:
.ons.
MS. RIGLER:
That would be additional
Right, that it's okay for
to apply for a special exception even if you
ed it. So I'm trying to figure out why you don't
apply for a special exception. Yes, you run the
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possibi[
are tell
trying
ready t
is -- w~
excepti(
episode
Then it
conside]
the fac~
with.
Could yc
but the]
who had
concess2
him, he
concern~
there
it's go~
are con~
23
ity that we will turn you down, right, but you
lng us that you have got this great plan so I'm
o figure out what is going on here.
MR. H~GHES: Part of it is timing. We're
build, we need to build. And so the time aspect
were here, but the application for special
n, which you will recall, was a three hour
which, quite frankly,
cost money to do that.
'ation.
they had counsel here.
There was that
I think that it's not so much -- well,
that we were a special exception there to begin
MS. RIGLER: And where was it changed?
go through the exercise?
MR. HUGHES: Yes, initially, we had started,
'e -- to be quite blunt, there was one neighbor
opposed it. I think we have tried to make
ons to help the situation, but I think if you ask
may say, I don't want it here. Again, those are
Any time you go into a proceeding where
potential of conditions which you can't meet,
to draw things out, if you appeal. If there
iderations, a lot of them are legal.
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in the
out, it
MS. HUGHES: NO,
MS. RfGLER: SO
seems to be -- I mean,
MS. RIGLER: But you didn't really ask for,
~lternative, for a special exception.
we did not.
in terms of drawing this
for us no to have some of
these b~sic answers like in what year was the zoning
ordinanl!e passed. And to get this thing tonight causes
us to d~'aw this out.
MR. HUGHES: And if that's your decision,
that's line. We want to make sure you are comfortable
and you have all the facts. I think certainly that's a
fact we can find out very quickly. I suggested before
that if wanted a condition and that is, in fact, the
case, ti ~n the issue is over,
excepti~n, end of story.
MR. BENJAMIN:
that to]Light,
tonight'
we will apply for special
And you are prepared to do
is that correct?
MR. HUGHES: Yes, we would do that.
MR. BENJAMIN: You are prepared to do that
MR. HUGHES: We would be prepared to
stipulate that if Ms. Rigler's concern that the ordinance
was the~'e at the time we built, and we
special exception and we didn't get it,
go h the process.
are in there as a
we are going to
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MS. RIGLER: They won't apply for a special
excepti¢ tonight, though. I mean, this hasn't been
advertised as that.
MR. HUGHES: The only reason we are here
tonight is we are going to offer testimony that this is
an appeal from the determination -- again, procedurally,
I think Mr. Womack and your Solicitsr felt this was the
proper orum.
MR. BENJAMIN: Do you have more you would
like to add in the process of appeal to us to make a
decision? Then let me ask our board if we have questions
for Mr. Womack or --
MS. RIGLER: Well, I'd like to hear Mr.
Womack' legal response if you can practice law without a
license Mr. Womack. Go ahead.
MR. WOMACK: Your letter says, with respect
to the lanning Commission recommended approval of the
plan -- recommended the church review the issue
concerning whether a special exception was needed by the
Zoning Board. And that wasn't discussed. Just
for cla'ification, the commission recommended approval of
the plal subject to the conditions that you either get
special exception -- here tonight.
MR. HUGHES: That was their recommendation.
MR. WOMACK: I just wanted to clarify that.
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that ou
CurrenJ
facilil
several
are her
is not
floor.
ever pl,
used as
legal v
around
raised.
beginni]
of dete~
special
neither
is givi!
should
26
of
to correct me if I'm incorrect.
o have a recreational facility.
MR. WOMACK: It's not going
MR. BENJAMIN: Will they play basketball?
MR. HUGHES: I don't know that you can rule
We're not putting up permanent nets.
could they play basketball in their current
Yes, they probably could[.
It has been made pretty clear -- and
the gentlemen from the board from the church
But the purpose
to be a gym
MR. HUGHES: That's accurate.
~y basketball on there? They could.
a fellowship hall.
Would they
It's being
MS. RIGLER: I just wondered what your
_ew was. Do you agree with his legal analysis?
MR. WOMACK: No, ma'am. I'm going to jump
little bit because of some of the issues you
Let me say, first of all, a disclaimer at the
g that with respect to all variances or appeals
?minations about whether a variance is needed or
exception is needed, you need to understand that
the staff, the zoning officer or borough council
Lg you direction. We take no position whatsoever
~ne be required. You just need to understand
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that
just sa
MS. RIGLER:
I don't understand what you
MR. W~MACK:
special exception is required.
or not ainst it.
whethez
the
No one
I have no position if a
The: borough is not for it
MS. RIGLER: Oh, yes, but the question of
it might be required --
MR. WOMACK: Some people seem to think that
is the appeal.
MR. RIGLER: Yes.
MR. WOMACK: I have some remarks of my own.
_s arguing that a place of worship and this
particu_ar church is not a special exception use.
That's the reason I don't know that it's
relevan when it was built except insofar as some
extrane, us fact that someone comes up here and says it
was ill,~gal.
The court case in my opinion -- and I have
been -- Mr. Schorp, Mr. Hughes and myself are all in
agreeme~lt that the court says when the ordinance changed,
that mai:es this a special exception use, it is now a
special exception use. That's kind of the end of story,
as I se~ it. I guess maybe I need to ask the board -- I
don't u]derstand your relevance.
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MS. RIGLER: Well, if it was built -- if
the zoning ordinance was enacted in 1970 and it permitted
churche in this district only as special exceptions and
the chu ch was erected in
special exception --
the
'73 and they did not get a
MR. WOMACK:
that --
MS. RIGLER:
I don't know anybody that is
back in 1973.
MR. WOMACK: Okay.
MS. RIGLER: Right?
MR. WOMACK: Yes, ma'am.
MR. RIGLER: So I think it is relevant in
what
that
know ab)ut it.
MS.
they di
MR.
offense
be, gee
year the zoning ordinance --
MR. BENJAMIN: Or the: other possibility is
did get a special exception and we just don't
RIGLER: No, he didn't. He assures us
BENJAMIN: To his: knowledge. No
but that doesn't tell us whether he did or not.
MS. RIGLER: And my comment was going to
if they are currently violating the ordinance,
I think you would agree that
cch currently is in violation of the zoning
ue, because it failed to get a special exception
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surely, we shouldn't permit them to expand on that.
MR. WOMACK: No one has made a
determination that they violated the ordinance, no one
has sta2ed that, no'one has implied[ that.
We can sit and argue and go back to when
something was or when something wasn't and typically we
don't azgue that here. We just talk about change and
nonconf
excepti
special
opinion
excepti
is that
excepti
the Fen
And the
special
special
Mr. Huc
that pa
MS. RIGLER:
do you think that
~n?
)rming use. We just said the criteria is a special
~n. We're willing to stipulate that it's a legal
exception use. That simplifies that.
But why, in your legal
they still need a special
MR. WOMACK: I'm going to tell you.
MR. BENJAMIN: So your beginning assumption
it is an okay -- whatever that means -- special
Dm use.
MR. WOMACK: We assume that sometime-- like
~icks case said -- whether it was nonconforming.
law -- the ordinance changed that allowed a
exception use -- that it becomes a permitted,
exception use. I don't regard it -- I agree with
~es on that and I don't
MR. HUGHES: That
~ticular case as well as
is how we are reading
the one after it.
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become
dimensi
don't s
it is a
affect~
standp~
situati,
hearing
excepti,
this sp,
because
places.
for Mr.
it neve~
there
ordinan~
to defi]
qualifi~
criteri~
MR. WOMACK: Let me back up. If, having
~ special exception use, there was a nonconforming
)hal variance that would become nonconforming, I
~e that as an issue here.
So I think everybody is in agreement that
permitted special exception use right now and
the status. The issue is relevant from the
~nt of the fact that this gets into the awkward
)n where there never was a special exception
The board never approved this special
n so there are no conditions, no plans upon which
~cial exception is based. ~ut that's not unusual
that happens. That's probably happened lots of
So that's it.
Now, that argument -- my initial question
Schorp was, is this a nonccnforming use? Because
has been in seven years. And the answer was no.
So we move forward. And I don't think
any caselaw from this point on. But the
e only allows approval of its special exception
~e if the proposed use will meet the
~ations for the specific use. And there are those
in 255-178A.
When the application came before us, and I
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heard tt
excepti¢
criteria
getting
think we
criteria
to comp]
be used
deal wit
initial]
within
officer
within
or 10,0
on the
neighnc
approprJ
excepti¢
think t~
be appr¢
application, I would argue that any special
has to continue to meet all the specific
of Section 255-177B-1, which is the general
which we have a case did not work out
special exception.
And you read those criteria off, and I
know what those are. But they are the general
for special exception. It also says that it has
y with the rest of the ordinance and that it must
as the specific criteria in 255-178 or 179, which
h permitted uses or accessory uses.
When this application came forward,
y, there was a plan on there that showed a use
0 feet of an adjacent property owner.
And I questioned, in my judgement as zoning
there was ample evidence tlhat that structure
0 feet, that property line ,of approximately 8,000
0 feet, could have a significant negative effect
ure character of an existing residential
hood, 255-177B5.
And for that reason, I thought the
ate thing -- the fact that there was no special
n approval, there were no conditions of a plan, I
e board was afraid that a new special exception
ved -- I know a variance was approved -- let's
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say the plan makes its approval based on that plan
before, that if it were to be subsequently changed, I
think ~u would argue it would not comply with the
specification approval.
So from that standpoint, I made the
determination because I didn't fee]. that I could issue a
buildin permit on a building that close to the
residen's property line of that size and clearly in my
judgement say that he complied with the general criteria
for not adversely impacting the neighborhood.
Now, that's not a specific argument, you
heard tilat case before. You heard that whether or not
that is or isn't, that's over. So I think that any
special exception, any conditional use on the part of
anyone, if any change would tend to violate any of those
criteri,~, even though it does comply, make sure those
criteri, comply.
And again, it's my feeling as zoning
officer that's what it should do. That's what should have
been
the
impact
residential
to the
in this case. And it's still my position that
potentially could have a significant adverse
n the desirable character of the existing
neighborhood.
MS. RIGLER: But it seems to me, that goes
of whether a special exception should be
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granted What you have just said goes to that issue,
whether a special exception should be granted.
What you have just said doesn't go to the
issue o whether a special excepticn is needed in the
That's my problem with what you have just
first place.
said.
MR. WOMACK: Well, I respectfully disagree
from standpoint that if someone lays something before
me and look at all those criteria for special exception
use, in, luding those general criteria, if whatever I see
before causes one of those
then would have to go --
MS. RIGLER: It
criteria not to be met,
sounds like what you are
saying s, if the church had not cc,me before you -- let's
assume didn't have anything to do with issuing a
permit, let's assume that. That the church had
built tl is addition 10 feet from the property line, it
sounds ~o me like what you are saying is, you would have
gone ou and cited the church, because it was violating
the zon ng ordinance, because it had erected a building
that wo'lld significantly affect the desirable character
of a residential neighborhood. Is that what you are
saying?
didn't
MR. WOMACK: Well,
jet a permit.
first of all, they
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buil
wouldn'
MS. RIGLER: Well, forget having to get a
permit.
MR. WOMACK: Well, that's the reason I
give them ~he permit is because I felt like --
MR. HUGHES: But take the other angle of
that. uppose you knew that there was no neighbor
complaint, would you have required a special exception
neighbo
adverse
would y
the
you hav,
is an e~
from
says wh~t
question.
MR. WOMACK: It didn't specifically say I
or don'
from this board?
MR. WOMACK: I didn't know that there was a
complaint before I made this decision.
MR. HUGHES: Suppose the neighbor and the
impact stuff, suppose that didn't pop out, what
determination have been?
MR. WOMACK: I probably would have issued
~it if I thought there was no noncompliance.
MR. HUGHES: And because the ordinance says
a special exception use currently existing, this
Dansion of a special exception use, no approval
board required.
MR. WOMACK: That's right.
MS. RIGLER: The ordinance says that? It
he just said? That's how you phrased your
I don't think the ordinance says that.
do that. To me,
do
I looked at this issue as being
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in compl
the asp.
whether
of the
don't
use, th,
though,
it span~
a specl~
have hi:
special
of thos,
any of
to go t
that I
special
Christ
I don't
35
.iance with the zoning ordinance, specifically,
~ct that doesn't need a special exception.
I make judgements, I suppose, every day
something -- it does not always err on the side
~onservatives. I could have I guess found it -- I
~e it as my function as zoning officer.
MR. BENJAMIN: If it was a nonconforming
ordinance is clear that it has to come in here.
MR. WOMACK: That's correct.
MR. BENJAMIN: Because it's a special use,
the ordinance is silent?
MR. WOMACK: It does not specifically say
~ special exception use, you have to come and get
~1 exception, that's true.
MR. BENJAMIN: Then the process that you
~torically gone through is in the expansion of a
exception use, you ask yourself the possibility
five points -- whatever the number is -- and if
hose are possible issues, that you require them
the Zoning Hearing Board.
MR. WOMACK: Yes, I would. I would say
ave very limited experience with expansion of
exception. The only other church I'm aware of is
lethodist, which had to get a lot of variances. So
know that I've got a lot of that here.
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came be
we can
come in
also?
That wa
variant
have t<
excepti~
signifi~
let's s~
officer
excepti(
before
special
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MR. BENJAMIN: On that Grace question that
lore the board -- and if anybody needs background,
~top my question, but my question was, did they
here for a special exception use at that time
MR. WOMACK: I don't believe they did.
before my time.
MR. BENJAMIN: I guess we granted the
s because they did the building, but did they
come for special exception.
MR. BENJAMIN: They didn't.
MS. RIGLER: They did or did not?
MR. WOMACK: Did not.
MS. RIGLER: They did not seek a special
)n?
MR. WOMACK: No.
MR. BENJAMIN: So they added some
'.ant square footage -- and just for analogy here,
,y it was 10,484 square feet -- and the zoning
did not require them to have a special
MR. WOMACK: That entire process was here
he variance was.
MR. BENJAMIN: Right~ but specific to the
exception --
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time, a
one-dim
that pr
that I
excepti
present
conditi
being a
is requ
some hi.
example
could f
frankly
that cal
first.
after a[
a formal
us, if
okay wi
37
MR. WOMACK: Again, it happened before my
~d no, it did not. And I suppose if they need a
~nsional variance and they had come in here with
)ject to the~Zoning Hearing Board, I don't know
vould have specifically said[ they need a special
)n at that time because the project would be
~d before the board, and at that time, the
)n would have been right here.
MR. BENJAMIN: But the issue that we are
~ked to decide on is whether a special exception
.red or not, and I'm trying to understand at least
~tory of that. And Grace -- Grace is a great
MR. WOMACK: I tried to look and see if I
_nd any more examples and I couldn't, quite
one way or the other, and Grace was the only one
~e up.
MR. BENJAMIN: I want to hear our Solicitor
I might want to hear him last
MS. RIGLER:
~1 of the parties.
MR. BENJAMIN: I
process here -- we have
ou would like to hear Mr.
h that.
guess because there isn't
the question in front of
Bova first, then I'm
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do that
procedu
until t
discuss
and it
about n
followil
grocery
hugh su
no chan
these b~
and ser'
good ar!
dimensi~
become
it as a
relatiol
factor
38
Do you have any argument that we shouldn't
MR. HUGHES: I have r~o objection to that
e. I do ha~e some comments:. I'll reserve those
he end.
MR. BOVA: Russell Bova, B-o-v-a.
Just a couple of thoughts related to the
.on you were having a moment
~lso relates to the argument
change in use.
ago with Mr. Womack,
that Mr. Hughes had
To say that, I kept thinking of the
g analogy of -- suppose you have a little corner
store that decides that it wanted to become a
)ermarket one day.
On the one hand, you could argue there was
e in use in a technical sense because both of
sinesses are in the business of providing goods
rices to clients. But I think you could make a
ument that the quantitative change and the
n, the size of that supermarket might very well
qualitative change in the use. That's how I see
neighbor of the church. We have had very good
~s, but size, dimensions themselves might be a
o take into account.
Secondly, if I'm understanding and
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followi
could b
special
assumin
apply -
excepti
out in
traffic
forth.
are
evaluat
evaluat,
in the
impact
neighbc
the imp,
perhaps
discuss,
situati~
make he~
the dat~
lg the argument correctly, I believe an argument
made by Mr. Hughes that the church already had a
exception, and therefore, we think -- we are
that and t~erefore, did not need to apply again.
But again, if at one point the church would
or any building would apply for a special
and had to meet a certain set of criteria laid
2he building ordinance, including things like
and safety and impact a neighborhood and so
But then the dimensions of that structure
]g to change significantly -- then one's
_on of that special exception and how long it's
~d, whether or not that project met those criteria
[irst place would change as well, because the
)f a 10,000 square foot addition on the
?hood is going to be qualitatively different than
~ct of the initial project.
So on both counts, I would argue that
this is the answer to the question that you just
~d with Mr. Womack that size does impact in both
)ns.
And finally, the one other comment I would
~e is to go back to the question of whether or not
~s are important here, when the church was built,
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when th zoning ordinance came into effect and so forth,
if you those are relevant questions.
It seems to me the burden to provide that
informazion must faf~ on the church in this case because
the ~dard ruling from the Borough Solicitor is that
they mu~t have a special exception.
The representatives of the church are
appeali that ruling. And if they want to appeal any
ruling, it seems to be incumbent upon them to provide you
with th information that you need to grant them that
appeal. Other than that, I can't add anything else on
the leg 1 side. I don't know if that is helpful or not.
The only other thing I can say to Mr.
Hughes, too, because he was mentioning concessions they
made, cl they made in the most recent plan. We had
-- I h~td two formal conversations with representatives
with th, church but nothing compared to, for example,
what we saw on the prior page where if you had a list of
conditi~ms, put out paper and everything formalized. So
I'm not sure where I stand out there. And I worry more
about ti -- going back to the original proposal of
special exception, is that required? I have no idea what
their i]~tention is. It is my belief that they do not
intend o go back there, but --
MS. RIGLER: They certainly could.
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MR. BOLA: That's partly my concern.
Again, can't really add much else.
MR. BENJAMIN: Thank you.
questio s?
MS. RIGLER: No, not of Mr. Bova. Should
we ask ~ob his legal opinion here.
MR. FREY: I think Mr. Hughes, Mr. Schorp~
and I ?e in agreement that there are no cases dealing --
that we could find -- dealing with situations where the
use was nonconforming under a prior ordinance and because
of the ~nactment of a new ordinance:, it became either a
special exception or a conditional use. And that upon
that us,~, making either an expansion of the use, however
you def_ne that, or expansion of structures would be
require, or it's not required to file for a special
excepti, n in that instance.
There are cases, including the Penridge
case, w]lich Mr. Schorp provided in which -- in that case,
Did you have any
t some additional hangars on the
.he airport was a conditional use,
They were required to file
part where it
in that
an application
it was
-- bec
became
constru
WaS --
instanc
Ln airport, which was originally all nonconforming
~use zoning changes. A portion of the property
conditional use. And the airport wished to
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for
what th
what it
saying.
~itional use. What is not clear from that case
zoning ordinance said. And I think probably
comes down to is what those numbers were even
I think Mr. Hughes pointed it out, but
there a?e provisions concerning an expansion of a
nonconf)rming use and there are not, any specific
provisi,)ns concerning the expansion of a special
excepti,)n. The one thing that may provide a basis for
requiril a special exception, if you want to consider
that, i~ under 255, 177-D1 --
MS. RIGLER: Under procedure?
MR. FREY: Under procedure for special
exception uses. And it says, the zoning officer shall
not it a permit under this chapter for a proposed
special exception use until written approval of the
Zoning [earing Board is obtained.
This is already an existing special
excepti ,n use. However, there has never been a Zoning
Hearing Board hearing on that special exception. It was
grandfathered or allowed in because of a change of the
ordinance.
first tJ
officer
So it could be argued that this is the
that a permit has been requested of the zoning
there has been no approval from the Zoning
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43
Hearin¢ Board.
However, it says, shall not grant a permit
under this chapter for a proposed special exception use.
Certain[y, the chur~ did not propose this point whether
the pro)osal for additional buildings makes that a
propose, special exception use for which the Zoning
Hearing Board need to provide approval.
And that could be why Mr. Womack is
referri~lg to you. I can't give you~ an answer one way or
the oth,~r because the ordinance really isn't specific on
that po.nt. I think that is probably why it should be
before rou to answer that question, because there is no
MR. BENJAMIN: Any questions?
MS. RIGLER: I have some thoughts.
tell me
want to I'm wrong on this, please,
to me s~mething -- we have uses as a right
special exceptions and we have conditional
If you
but it seems
and we have
uses.
excepti~
special
matter
yes, th
says, nc
And as I look at -- rather than say special
~n and conditional use, I'm going to just say,
exception. It seems to me we have uses as a
,f right and then you have special exception.
And special exceptions -- I see them as,
y fit in pretty well. But the Borough Council
netheless, you have to be careful, it's not a
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permitt,~d use,
scrutin.ze.
they have to come before you. You have to
The Zoning Hearing Board has never
scrutin_zed the church's use of this property. And thus,
it seem~ to me, before we permit an. expansion either
dimensi, nally or some other way, it seems to me the
spirit )f what special exceptions are about -- and we all
agree tlat this is permitted, it's only permitted because
it's a ~pecial exception, not because it's a matter of
right this area -- it seems to me appropriate that we
scrutin~ ze this. That's kind of how I was thinking about
this.
MR. HUGHES: Well,
says what you just
255.77 ~lmost
excepti ,n process
uses. t has some potential
in your area.
the purpose stated in
said. The special
is designed to allow a careful array of
conflicts with adjacent uses
MR. BENJAMIN: And I agree. I'm bothered
by the church's previous experience.
MS. RIGLER: Well, I certainly wasn't on the
Zoning Board. The zoning officer wasn't the
zoning fficer then. I mean, we have no -- it seems to
me it be incumbent on Mr. Huglhes to offer similar
or anal~ cases to us, and I don't think he did.
MR. HUGHES: We weren't aware of that.
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burden
challen
differ,
differ~
long t~
became
know.
houses
distric
history
you.
not cre~
a certaJ
particu]
board i~
if we al
would ii
anybody
45
MS. RIGLER: That's right. But I think the
is on you to make yourself aware if you are
~ing this decision. We didn't hear that.
MR. WOMACK: It is analogous. It's in a
it zoning district and if they had been in a
It zoning district, it obviously was around for a
ne, probably prior to the ordinances. But when it
special exception plan, we: don't necessarily
have no idea.
MR. BENJAMIN: It's an R4.
MR. WOMACK: It's an R4. And churches,
worship, are a special exception use in an R4
as in this case, when you don't know the
)rior to that if there were other things before
MR. HUGHES: And there are those conditions
~ed by the applicant kind of things where it has
n size area that is different than this
ar area.
MR. BENJAMIN: The question before the
, is this special exception review required? And
e up to that point in answering that question, I
ke to proceed with that,
MS. RIGLER: Well,
unless there's
I think technically, the
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questic
officez
I would
followi
before us is, should the decision of
be overturned?
MR. HUGHES: If it would please
like to make' a short --
(Mr. Hughes
ng occurred:)
MS. RIGLER:
46
the zoning
the board,
opened to the board wherein the
If I may interrupt. You would
agree with me, I assume, that the whole notion of a
special
Zoning
can bec
Board
but es:
the thil
excepti,
been. B
how a s
have th
exception is premised on the notion that the
~earing Board is going to look at this before it
in, correct?
The whole notion is that the Zoning Hearing
you will forgive me, since! this is the church --
ntially, the Zoning HearinG[ Board has to bless
lg before you could build, right?
MR. HUGHES:
)n.
MS. RIGLER:
If we were asking for a special
That's right. And you would
agree w.th me that this has never been blessed by the
Zoning [earing Board?
MR. HUGHES: To our knowledge, it has not
It we didn't necessarily need to.
MS. RIGLER: I understand it. But that's
~ecial exception should operate, that you have to
Zoning Hearing Board's approval before you could
1 do this
2
3
4 with me
5 church
6 whatsoe
7 decided
8 this 10
9 this wh
10 before
11 all the
12 it not
13 neighbo
14
15 have in
16 were th
17 do with
18 differe
19
20
21 You sai,
22 that th
23 we coul~
24 and we
25 will at
47
MR. HUGHES: Right.
MS. RIGLER: And I think you would agree
if I understand this zoning district, if the
~ere not there -- if there were no church there
~er, but the church owned that property and it
it wanted to build a church, which would include
000 feet -- not the church as it looks today, but
~le bigger thing, the church would have to come
2he Zoning Hearing Board and would have to satisfy
criteria for a special exception, including that
~ignificantly, negatively affect the
fhood. Correct?
MR. HUGHES: Yes. The only difference we
what you have described is the notion that we
~re beforehand and what is decided and what is to
those groups. And that's where it puts us in a
~t category.
MR. BENJAMIN: Any questions?
MS. RIGLER: Well, let me ask you this.
time was a big deal for you. It seems to me
s is a very complicated legal issue. One thing
ask for is, gee, write us a brief on this issue
1 have the Zoning Hearing Board's Solicitor, we
him to write us a brief on this issue and we'll
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say to
this is
then tb
from nc
public
render
say,
this is
zoning
think t
So I th
whether
can hay
-- pay
would g
in term
you hay.
like?
that th,
to whet
the fi]
48
Mr. Schorp, gee, if you want to write a brief on
sue.
Then we will have these three briefs. And
Zoning Heating Board could come back a month
We will have read these briefs, and in some
~ession, we will talk about what we have read and
decision, because I think I've heard Mr. Frey
hink I have heard you say, this is a difficult --
a legal question that certainly the Carlisle
prdinance does not directly answer.
And I think Mr. Frey had said he doesn't
here is Pennsylvania law directly on point, okay?
ink that's one option I think we could have.
We could have no decision tonight on
to overturn the zoning officer's decision, and we
~ everybody spend a lot of time and money writing
lng the lawyers, writing briefs. I would hope you
~t, shall I say, the best this group can give you
of its legal decision about the legal question
presented. I mean, is this something you would
MR. HUGHES: I guess my concern there is
legal -- obviously, we got to a legal issue as
er or not we were a special exception. That was
;t legal issue we had to get over, and it appears
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1 that ev
2 about t
3
4 an inte
5 really
6 apply.
7 record.
8 here.
9
can mak~
that, w~
obviousl
right,
in fact
review
then we
to what
if the
49
~ryone is in agreement as to what the law says
Once we got past that., then we got down to
?pretation o{ the ordinance of a factual issue
~s to whether the provisions in the ordinance
Of course, we have done all this as a matter of
I'm not sure what our brief -- as we have right
MS.
MR.
the most
MS. RIGLER:
MR. HUGHES:
RIGLER:
HUGHES:
The ordinance.
Certainly, we could do that.
Sure.
And if you feel that the board
informed decision, you require us to do
certainly would comply. The timing issue --
I think your meeting is a week before, is that
Womack?
MR. WOMACK:
MR. HUGHES:
That's correct.
It is not going to be -- if,
you have all of this in advance, if you can
t, give us a time line as to when you need it,
can comply with that and get you something.
And then you can decide at that meeting as
~ou want to do, so we are on schedule, you know,
>ard decides that we need it.
MS. RIGLER: But that's if you are back in
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1 front o
2
3
4 criteri
5
6
7 trying
8
9 avoid b
10 monetar
11 are cur
but you
that, b,
there 1:
you --
discus~
that w~
objectil
because
and aga~
the chu]
how tha~
5O
us in September --
MR. HUGHES: Right.
MS. RIGLER: -- trying to satisfy the
of a speci~l exception.
HUGHES: And that. causes delay.
RIGLER: I thought, that's what you were
MR.
MS.
avoid.
MR.
HUGHES: That's what we were trying to
~cause of where we are in the planning process
costs. There are other considerations, where we
ently in our market.
MS. RIGLER: So you are willing to do this,
are not anxious to do that.
MR. HUGHES: No, I'm not anxious to do
~cause again, as you mentioned at the outset,
an expense to that. Certainly I think all of
ou know, it is a complicated situation.
If the board said, ycu need more time to
it with counsel, whatever, and had a time frame
a little bit shorter, certainly I would have no
n to that to where you render your decision,
we have all heard an awful lot about this issue
n. Just from a monetary standpoint representing
· ch and going through the briefing, I'm not sure
is going to assist you in your decision other
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1 than co
2 Womack.
3
4
it's de
it. I
factual
ordinan
relevan
to whet
excepti
Hughes,
is typi
conditi
criteri
size, t
adverse
that th.
Schorp~
whole 1,
I look
51
~sulting with Mr. Frey and/or Mr. Schorp and Mr.
MR. BENJAMIN: Mr. Womack?
MR. W~MACK: I would argue as well, say
~eted, that the issue would pretty much clarify
ion't know if there's any law -- I'm not sure
ky, it would match up if we took pages in the
re and tried to find a relevant line here, a
~ line here. To me, the issue simply comes down
her or not a change of this magnitude as a special
)n still complies with all this criteria.
I would argue, just to rebut briefly, Mr.
that issue of meeting area and bulk requirements
2ally what is done on a provisional use.
The other criteria for special exception
)nal uses are designed to look at some general
as well as specific criteria.
And if you take a look at a thing of this
me, it has a potential of having a significant
impact on the neighborhood. That's a decision
board would need to make. I don't know. Mr.
id his legal research. I'm sure we will learn a
)t more to clarify that issue.
MR. BENJAMIN: Let me offer one thing. As
)asr the question, the legal question,
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I'm not
questio
versus
going t
you are
an 80,0
as a ne
an airp
a box t
percenl
signif~
say, we
could b,
view, tl
issue.
even if
of 5 pe~
Sunday
because
look pat
excepti¢
differez
52
personally satisfied that you have answered the
ns that the use is the same.
Mr. Bova presented a corner grocery store
~upermarket ~ind of analogy, but it's -- and I'm
say that this isn't as extreme as that, because
talking about a 20,000 square foot thing versus
]0 square foot thing. But as I think of this, not
[ghbor but as any outside observer, whether I'm in
lane above or standing next to it, when I look at
hat grows significantly -- I know it's a
~ge of the square footage, but 10,000 feet is a
~ant growth.
I look at that box from the outside and
.1, they are doing something different. Now, it
just more people there, but from my point of
at's something different.
We had a previous case and traffic was an
I mean, people are going to be involved. And
it's just a number of people issue, that instead
)le in a Sunday school class, it's 25 people in a
~hool class. To me, it takes the view of --
there is something different going on. So if I
:t the legal issue unresolved to the special
,n use and say to myself, well, there's something
t now --
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Let's
double
setback
Hearin¢
53
MS. RIGLER: If I could interrupt, Jeff.
aBsume I have a home in an R1 area and I decide to
2he size of my home. Assuming I meet all the
requirements, I need no approval from the Zoning
Board to do that.
MR. BENJAMIN:
changin
triple
a speci
permitt
since i
it pred
church
use per'
with a
are ri(
special
Because you are not
somethi~
MS. RIGLER: I could{ double it, I could
t, I could quadruple it.
MR. BENJAMIN: But that's not the case with
~1 exception.
MS. RIGLER: But I think Jim Hughes' point
~hould treat the church as though it's a use
~d by right at this point. At this point in time,
is permitted by special exception in this area,
ted the zoning ordinance.
We subsequently said, yes, you can have a
lere. We should treat the church as though it's a
aitted by right.
To me, the difference: between my example
home and this church is the notion that yes, you
lt, the church is permitted there, but only by
exception which -- it is nc, t permitted by right.
And in essence -- typically, to do
lg by special exception, it requires the approval
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of the
operati
Board.
quadrupl
Zoning
the use
the use
parlor
somethil
zoning
be conJ
zoning
mean, I
they are
school
is, I t
exceptie
differen
legal is
legal is
54
~oning Hearing Board. And this operation, current
)n has never been approved ky the Zoning Hearing
That's the testimony before us. But I could
.e my home w£~[hout ever appearing before the
[earing Board. So I think that's not --
MR. HUGHES: So you are not interested in
MS. RIGLER: Well, I would be interested in
if, you know, they were going to open a disco
here, I would say, we're no longer talking about
g that is permitted as a ma~ter of right in that
istrict or we may not be.
I want to know more, 'zell me more so I can
dent that that use is permiJzted by right in that
istrict. So I think the use is important. I
think we have heard no testimony -- you know,
going to have more pot lucks, more Sunday
MR.
nk we ought
because I
or subject
ues and hear the case.
MS. RIGLER: Well,
BENJAMIN: And what I was getting to
to hear the case for special
think the use is potentially
to review, in my opinion. Skip the
we have to decide the
though, because that 'c.
z~, the only question
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before is. They have not filed an application for special
exceptiDn. We have to decide whether, in fact, they must
file an application for special exception. That's what
Jim is askin~ us. Do we have to file or submit an
applica2ion for a special exception? If the answer is
no, as long as they have land approval, they can go
ahead.
is, tha
circums ance.
point,
the cas
answer
MR. BENJAMIN: The testimony in front
there is no specific law citing this
of us
MS. RIGLER: I think that's right.
MR. BENJAMIN: If you just take that one
the law part doesn't matter.
MS. RIGLER: Well, of course, they may
decide to file an application for special exception
so in t ~rms of hearing the case, they are making no case
to hear
MR. BENJAMIN: Okay by me. I have nothing
to do w~th that.
that ri¢
MR. BERNSTEIN: You have made your case, is
MR. HUGHES: Again, I think without beating
~hen the question before us is, do we want to hear
or not? And I think what I've heard so far, my
o that is yes, if we can get to that point, then
1 a dead
2 what we
3 that yo
4 excepti
5 we're t
6 said, b
7 are the
8 ordinan,
9 outline,
10 we are
11 were, t
12 That's
13 that le
14 are rig]
15 going t¢
16 it or w~
17
18 applicar
19 cross re
20 shorter
21
22 making
23 where w
24 think i~
25
56
Norse, I think the example in terms of exactly
are saying legally except for the factual things
mentioned, which would be part of the special
n, if we go~'to that point -- we're saying that
here as a special exception by law and Ms. Rigler
right, it's the same thing!, in essence that we
e. And because we didn't comply with our zoning
~e, you are -- and don't change our use, which is
t, whatever uses we are supposed to have in here,
lot changing the nature of what some of those uses
len we have the right to put up a building.
~ur position, and therefore, we need to come to
[al determination where you say either yes, you
~t, or no, we don't think you are right. We are
make our determination and then we either appeal
file for special exception.
MR. BENJAMIN: We, the board, and you, the
~, what we have -- we're going to end up in some
ad and make our decision. I guess I see a
road.
MR. HUGHES: Well, I am in favor of you
decision. Certainly, I think you understand
are coming from,
's about law.
I think Mr.
what our position is, why we
Frey gave you -- you know, I
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think
the sp
necessa
say, he
this.
the ord
decisio
just ha
underst,
there's
the cha:
says we
changin
then --
the pro~
to add?
positior
special
general
right is
57
agrees with us on the law,. and he even went to
ific section of the ordinance. We wouldn't
rily go that far because, you know, we'd stop and
~e's what th~ law is, and therefore, we can do
3ut that's why again we came before you, because
[nance didn't address it.
Obviously, it's in your purview to make the
whether we need one or whether we don't. You
re to decide. I just wanted~ to make sure you
)od it. We're arguing the legal side. That's why
no testimony, per say. We're getting right to
~e on the legal issues.
We're here as a special exception, the law
re a special exception. And since we're not
our use, as you identified in our ordinance,
~es, then we just have to make sure we meet all
.sions of the ordinance to make sure.
MR. BENJAMIN: Does anybody have anything
MR.
here. I
exception,
HUGHES: I just want to clarify the
thought I heard you say that if it's a
then it's a permitted use.
MR. WOMACK: I want to clarify. In a
vernacular, that's true. But a use permitted by
different from a special exception, those are
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2
3
differ
genera]
excepti
Board ai
it then
excepti~
then?
it's tee
then?
separate
essentia
permitt(
somethi~
58
nt.
MS. RIGLER: And how are they different?
MR. WOMACK: They are required to meet
and special criteria.
MS. RIGLER: But if, in fact, the special
)n criteria are satisfied, and the Zoning Hearing
)proves the special exception, is it fair to call
a permitted use?
MR. WOMACK: No, ma'am, it's a special
~n use, it remains a special exception.
MS. RIGLER: It doesn't make a difference
MR. WOMACK: Yes, and I argue that it does.
MR. BENJAMIN: It may feel the same, but
hnically different is what you are saying?
MR. WOMACK: Right.
MS. RIGLER: And it's different how so
MR. WOMACK: In that those three uses are
ly,
use is
else.
MR.
MS. RIGLER: Yes, I understand that, but
it's entitled to all the benefits that a
entitled to unless the ordinance says
WOMACK: That's correct.
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clarify
when
excepti,
must me,
special
doubt a]
criteri
view.
propose
determir
whicheve
special
place bu
59
MS. RIGLER: I got it.
MR. WOMACK: And the argument is -- and to
it so that we are really crystal clear, is that
bring a change in like that, that is a special
n use, the zoning officer's position is that it
~t all the general and special criteria listed for
exception. And in my opinion, there was some
~out whether this expansion would meet the
especially of 255.170.
MS. RIGLER: I think I understand your
MR. BENJAMIN: May I ask the board to
direction.
MS. RIGLER: Will you entertain a motion?
MR. BENJAMIN: Yes.
MS. RIGLER: I move that we uphold the
ation of the hearing officer, deny the appeal --
r way you phrase it.
MR. BERNSTEIN: I'll second that.
MR. BENJAMIN: Discussion.
MR. BERNSTEIN: If there's doubt this is a
exception, it is subject to our scrutiny.
MS. RIGLER: Jeff and I come out the same
for different reasons. A~Iain, I think this is
said earlier, I think a special exception
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contem
initia
that sc
distin(
grandf~
somethi
with no
already
use, yo
which y,
Zoning
this is
treated
is not
with ho
with, sc
make pr~
there's
6O
lates scrutiny by the Zoning Hearing Board
ly. And this is an entity which has never had
rutiny.
Mr. B~NJAMIN: Then I guess we're making a
tion between those properties that are
~hered in versus those that --
MS. RIGLER: Well, not necessarily. It's
~g -- well, we make a guess. And we certainly do
lconforming uses. The zoning ordinance clearly
does that. I mean, if you have a nonconforming
are permitted to continue that.
You may not violate the zoning ordinance,
are not permitted to expand it unless you get
tearing Board approval. So yes, it seems to me
consistent with how nonconforming uses are
under the ordinance.
And I understand that, we have agreed this
nonconforming use, but it's certainly consistent
preordinance circumstances and uses are dealt
for different reasons.
MR. BERNSTEIN: I agree that we shouldn't
ffeterminations.
MR. FREY: The only determination is that
the potential for that.
MR. BENJAMIN: I don'~2 even know that. I
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just ha
those t
officer
require,
discuss
upheld
you are
apply f¢
for you~
61
;en't heard enough to know whether or not any of
lings are -- I have a motion to uphold the zoning
's decision that a special exception review is
I have a second to that. Any further
on? All those in favor of the motion, say aye.
(Vote taken.)
MR. BENJAMIN: Let the record show that we
.he zoning officer's determination. I assume that
then faced with the decision and may or may not
,r the special exception.
MR. HUGHES: That is correct. Thank you
time and attention.
(The hearing was concluded at 9:31
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62
and evi,
notes t,
copy is
I hereby certify that the proceedings
[ence are contained fully and accurately in the
~ken by me on the within proceedings and that this
a correct transcript of same.
eo Twp., C4.~rland Goun(y I'
~ ecr~ ~r. 10, 2007 !
Deborah Ruggiero~,~f/[
Registered Profes~i~nal Reporter
Notary Public
Opinion
Z]
7
and Decision of Zoning Hearing Board
tB Case No. 021-03, July 9, 2003
Zoning Hearing B
Borough of Carli
ZHB Case No.
Date of Decision:
OP
After prope
in the Carlisle Boro
Pennsyl,(ania at 6:3
they being Jeffrey
were Chair, Ronald
In addition,
Acting Solicitor, Ro
Appellant at
application for speci
subm/tted by the A[
Present on ~
Because the
Planning/Zoning/Coz
necessary, no evidem
Appellant's use of th,
of Zoning Ordinance
would currently be pi
Residential District.
its records indicate th
property was located
permitted use under ti
The position ~
Plans was that becaus
special exception had
there appeared to be a
conditions by Zoning
the Zoning Hearing B~
The Appellant takes tlr
special exception in th
buildings but no chang
should be required me:
~ard
021-03
tly 9, 2003
Re: First Church of God,
Appellant
NION AND DECISION OF ZONING HEARING BOARD
BACKGROUND
r advertisement, the Board held a public heating on Wednesday, July 9, 2003
~gh Municipal Building located at 53 West South Street, Carlisle,
) p.m. Three of the five members of the Zoning Hearing Board were presentl
~,Benjamin, Acting Chair, Jane R/gler, and, Jeffrey G. Bergsten. Absent
simons, and member Henry Treffinger.
3resent were Planning/Zoning/Codes Manager Kenneth W. Womack and
>eft G. Frey.
peals the determination made by the Zoning Officer on May 12, 2003 that an
tl exception must be submitted to the Zoning Hearing Board for the Plans
~ellant for the construction of an addition to Appellant's existing building.
:half of the Appellant was James Hughes, Esquke.
hatter before the Board was solely on the legal issue of the propriety of the
es Officer's determination that a special exception application was
:e was presented. However, it was stipulated by the Borough that the
'. property as a place of worship was a lawfully existing use and that because
amendment since its original construction, Appellant's use &the property
rmitted as a special exception use in the Borough's R-1 Low Density
It the direction of the Zoning Hearing Board, the Borough confirmed that
tt at the time the building permit for the church was issued in 1973, the
n the Borough's R-I Residential District. A place of worsb, ip was a
ordinance then in effect.
the Borough Planning/Zoning/Codes Manager on review of Appellant's
: Appellant's use of the property is permitted as a special exception, but no
>een previously issued by the Zoning Hearing Board and further because
~pects to Appellant's plans which might warrant the impos tion of
tearing Board, an application for special exception should be submitted to
,ard for review and approval, as determined by the Zoning Hearing Board.
e position that its use of the property is a lawfully existing use permitted by
~ R-I District. Appellant asserts that its plans propose an expansion of
e in the use of the property and, therefore, nc special exception application
ely because of the expansion of the buildings. Russell Bova, a
EXHIBIT "A"
neighboring pro[
Manager assertir,
In the
Commonwealth C
whether a use whi
a conditional use
conditional use. T
to a conditional us
Township Board o
Based on t
place &wOrship is
District, even thoul
Pennridge dealt
regarding conditior
Borough Council,
The issue
an application for
prior decision by
Hearing Board by a
a special exception
Section 25~
allow a care~'ul revi
The special excepti,
each special excepti,
standards to conside
impose reasonable c
in the Zoning Ordim
exception, has never
Appellant's use of.~
through an expanstm
Hearing Board pursu
The treatmer
Ordinance for the tre
both instances, speci~
by right. In the case
In the case ora use p~
Hearing Board apply.
special exception app
Ordinance for the rea.
right rather than a use
those uses, which are
exception approval b3
circumvent the safegu
:rty owner spoke in support &the determination by the Planning/Zoning/Codes
that special exception review by the Zoning Hearing Board was appropriate.
DISCUSSION
: ofPennridge Deveiopment Enterprises, Inc. v. Volovnic, 154 PA.
:. 609, 624A.2d 674 (1993) the Commonwealth Court considered the issue of
:h was a non-conforming use under a prior Zoning Ordinance was converted to
,hen a subsequent zoning ordinance permitted that use in the district as a
ae Court concluded that the ordinance change converted a non-conforming use
~ thereby reversing the lower court and upholding the determination by the
7Supervisors that a conditional use application was required.
,e Pennridge decision, we conclude that the Appellant's use of its property as a
a lawfully existing use permitted by special exception in the R-1 Zoning
:h it was a permitted use in 1973 when the church was built. The fact that
h a conditional use rather than a special exception use is immaterial. The law
al uses and special exceptions is virtually identical. Sheetz v. Phoenixville
PA Commonwealth Ct. ,804A.2d 113 (2002).
ffore the Board is whether the Appellant's expansion of its building requires
~ecial exception before the Zoning Hearing Board since there has been no
'. Zoning Heating Board approving the special except/on use. The Zoning
unanimous decision of the three Board members present has determined that
[pplication is required.
.177.A. clearly states that the purpose of the special exception process is "to
w of uses that have some potential of conflicts with adjacent uses or areas."
n procedure coniemplates careful scrutiny by the Zoning Hearing Board of
m use. The Borough Ordinance gives the Zoning Hearing Board specific
' in granting a special exception and allows the Zoning Hearing Board to
~nditions and safeguards in granting a special exception. Because of changes
ncc over time, the A ' · ·
ppellant s use, which ,s now permitted as a special
been reviewed by the Zoning Hearing Board. Therefore, any change in the
: property, whether that be to a different use .or an expansion of the use
of the existing building requires special exception review by the Zoning
ant to Section 255-177.
t of the Appellant is consistent with the procedure contained in the Borough
ttment of the expansion of a non-conforming use. See Article XXI 11. In
I treatment is required for a n expansion in a use that is no longer permitted
ff a nonconforming use the Borough Ordinance sets specific requirements.
:nnitted by special exception, the procedures for review by the Zoning
To allow the Appellant to expand its building without the requirement for
:oval, as suggested by the Appellant, is inconsistent with the Borough
on that it would treat Appellant's use of the property as a use permitted by
permitted by special exception. The Borough Ordinance clearly delineates
>ermitted by right, and those uses, which are permitted subject to special
the Zoning Hearing Board. To ignore the difference in treatment wonld
ards established in the special except on process.
Anyone
County Court of~
Jeffr~t~.~ f3 enja,
Date [7 ~t~
J~f~efG. Bergste
~ggrieved by this decision of the Board has th,.' right to appeal to the Cumberland
.ommon Pleas within 30 days from the day of th s decision
~/,/
CONNIE MICKLEY,
PETITIONER
COMMONWEALTH OF pENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
No. 03-4988
LICENSESUSPENSION APPEAL
ORDER
~ day of ~~ .~ 2003, the appeai
AND NOW, this _
filed in the above referenced matter is DENIED in part and REMANDED in part. The
petitioner's appeal is DENIED regarding the one year suspension imposed under 75 Pa. C.S.
1532(b) as a consequence of the petitioner's conviction on September 4, 2002, for a violation of
75 Pa. C.S. 3731 on November 4, 2001. The Department represents that the petitioner is due
credit for the one year 1532/3721 suspension from September 4, 2002, less jail time. The
and the Department shall CORRECT
petmoner appeal is REMANDED to the Department
THE RECORD AND RESCIND THE REQUIREMENT THAT THE PETITIONER
COMPLY WITH THE REQUIREMENTS OF THE IGNITION INTERLOCK LAW, 42
Pa. C.S. 7001-7003, that the Department imposed without a court order as a condition to the
restoration of the petitioner's driving privilege as a result of the petitioner's violation of Section
3731 of the Vehicle Code, violation date November 4, 2003.
DISTRIBUTION:
George H. Kabusk, Esquire, P ennDOT, Riverfront Office Center, 1101 South Front Street,
Harrisburg, Pennsylvania 17104-2516
Karl E. Rominger, Esquire, 155 South Hanover Street, Carlisle, pennsylvania 17013
II~ ~q. 03